Appellate Procedures in Bankruptcy
A. Bankruptcy Appeals To The District Court Or Bankruptcy Appellate
In some circuits, appeals from the bankruptcy courts may also
go to a Bankruptcy Appellate Panel (BAP), consisting of three bankruptcy
judges from another district within the circuit. 28 U.S.C. § 158(b)(1),
(5). A BAP cannot hear appeals in a district unless a majority of the
district judges for that district authorize it. 28 U.S.C. § 158(b)(6).
However, once authorized, the BAP can hear and determine appeals otherwise
directed to the district court unless the appellant or any other party
elects to have the appeal heard by the district court. 28 U.S.C. §
The time limits are shorter in bankruptcy appeals than in
other federal appellate practice. The notice of appeal must be filed within
ten days of the date of the entry of the order or judgment appealed on the
bankruptcy court's docket. Fed. R. Bankr. P. 8002(a). Ten days means ten
daysweekends and holidays are not excluded. Fed. R. Bankr. P. 9006(a).
The bankruptcy judge may extend that time for up to twenty days if the
motion to extend is filed within the original ten days. Failure to file the
notice of appeal within the time limits requires dismissal of the appeal,
except in limited circumstances or if the notice was late because of
"excusable neglect." Fed. R. Bankr. P. 8002(c). Any cross-appeal must be
filed within ten days of the filing of the notice of appeal.
If a timely postjudgment motion is filed (including (1) a motion for
reconsideration, (2) to amend findings of fact, (3) to alter or amend the
judgment, (4) for a new trial, or (5) for relief under Rule 9024, Fed. R.
Bankr. P.) the ten days to file the notice of appeal begins to run after the
entry of the order disposing of that motion. Fed. R. Bankr. P. 8002(b). A
timely motion requires only the service of the motion within the ten days
rather than the actual filing. This is consistent with practice under Rule
59, Federal Rules of Appellate Procedure (FRAP). See 9 Collier on
Bankruptcy, ¶ 8002.06.
Within ten days of filing the notice of appeal, appellant must file (1)
a statement of the issues to be decided and (2) a designation of the record.
Fed. R. Bankr. P. 8006. Appellant's opening brief must be filed within
fifteen days from the date on which the appeal is docketed in the district
court. Appellee's response is due within fifteen days of the opening brief.
Appellant has ten days to file a reply if desired. Fed. R. Bankr. P. 8009.
Briefs are deemed filed when mailed. These requirements are not
jurisdictional, and the court does not have to dismiss the appeal if the
appellant is late in filing a non-jurisdictional item. In re SPR Corp., 45
F.3d 70 (4th Cir. 1995); In re SB Properties, Inc., 185 B.R. 206 (Bankr.
E.D. Pa. 1995), aff'd, 185 B.R. 198 (E.D. Pa. 1995) (failure to file
designation of record within time provided by the rules does not require
dismissal of appeal.); but see RecoverEdge L.P. v. Pentcost, 44 F.3d 1284,
1289 (5th Cir. 1995) (appellant's failure to provide a transcript is a
proper ground for dismissal of the appeal under Rule 10(b)(2), Fed. R. App.
P.); McKenna v. U.S. Trustee, 177 B.R. 755 (D.R.I. 1994) (repeated late
filings warrants dismissal of appeal).
In any monitored case or in any case with precedent-setting potential,
the Civil Division should be advised immediately of adverse rulings and of
the USA's recommendation.
B. Appeals to the Circuit Courts.
Interim Bankruptcy Rules
- An appeal from either the district court or the BAP is to
the circuit court of appeals and is governed by 28 U.S.C.
§§ 158(d), 1291-92 and the Federal Rules of
Appellate Procedure. Title 2
of this Manual describes the
Department's procedures concerning appeals. Appeals to the
circuit court are commenced by filing the notice of appeal in
the district court within sixty days (for the United States)
of the date of entry of the order on the docket. Fed. R. App.
P. 3, 4.
- Appeals to the circuit courts require approval of the
Solicitor General as described in Title 2.
- Direct Certified Appeals
- The Bankruptcy Abuse Prevention and Consumer Protection Act of
2005 ("BAPCPA"), Pub. L. 109-8, 119 Stat. 23,
amended Section 158 of Title
28 to give the courts of
appeals under certain
conditions jurisdiction to hear an appeal from a judgment or
order of the bankruptcy court, thereby bypassing a district
court's or bankruptcy appellate panel's intermediate review.
BAPCPA § 1233. BAPCPA amended Section 158 by adding
subsection (d)(2), which consists of five subparts designated
(A) through (E). Subpart (A) creates a certification
procedure and vests in the courts of appeals, if they
authorize the direct appeal, jurisdiction over the certified
appeal. The certification may pertain to any judgment
described in Section 158(a), which includes final and
interlocutory orders of a bankruptcy court. If a bankruptcy
court judgment is certified and direct appeal is authorized,
the intermediate level of appeal is eliminated. Section
158(d)(2)(A) provides that the certification can be made by
(1) the involved bankruptcy court, district court, or
bankruptcy appellate panel acting either on its own motion or
at the request of any party to the judgment; or (2) all the
appellants and appellees (if any) acting jointly. Section
1233 applies only to cases filed after BAPCPA's
October 17, 2005 effective date. BAPCPA § 1501(a).
- The Solicitor General has responsibility, in consultation with
each agency or official concerned, for determining whether, and to what extent, the
government will pursue appeals in the courts of appeals,
USAM Chapter 2-1.000, including whether to request a district court
to certify an issue for interlocutory appeal under 28 U.S.C.
USAM § 2-2.311. A request for certification
under Section 158(d)(2) is similar to a request to certify an
issue for appeal under Section 1292(b) and Rule 5 of the
Federal Rules of Appellate Procedure. Therefore, the
Department's procedures for requesting Section 158(d)(2)
certifications are similar to those for requests to certify an issue for
interlocutory appeal. Detailed guidance from the Solicitor General is
Civil Resource Manual 99.
To implement the substantive and procedural changes
mandated by BAPCPA, the
Committee on Rules of Practice and Procedure of the United
States Judicial Conference and the Judicial Conference of the
United States has approved Interim Bankruptcy Rules (the
"Interim Rules") proposed by the Advisory Committee on
Bankruptcy Rules. Courts have since adopted the Interim Rules
as local rules in nearly every district. Included in the
Interim Rules are two new rules pertaining to direct appeals
to the court of appeals, Rules 8001(f) and 8003(d). Of utmost
importance to preserving the government's rights, remember
that nothing in Section 158(d)(2) or the Interim Rules changes
the requirement for a timely filed notice of
appeal in accordance with Rules 8001 and 8002.
C. Constitutional Challenges and Other Representation.
The Civil Division should be notified promptly of constitutional challenges
and of requests for intervention or for the filing of briefs amicus curiae.
See USAM 4-1.323 and
D. Property of Co-Debtors.
A special problem is presented where a jurisdiction recognizes tenancy
by the entirety in all its incidents, the United States has an unsecured
claim against the co-tenants, only one co-tenant files in bankruptcy, and 11
U.S.C. § 363(h) is inapplicable because the state exemptions are chosen. If
a discharge in bankruptcy is permitted as to the co-tenant in bankruptcy,
the requisite "jointness" of the co-tenant's liability is destroyed, and the
United States cannot impress a lien upon the entire property for the joint
debt. See Fetter v. United States, 269 F.2d 467 (6th Cir. 1959).
Thus, the government should endeavor to stay a discharge against one
co-tenant to permit entry of a judgment against both co-tenants. In re
Phillos, 14 B.R. 781 (Bankr. W.D. Va. 1981).
After the government's judgment is perfected as a lien against the
entire property, the bankruptcy can proceed without affecting the
government's lien against the entire property unless the government's claim
is disallowed in the bankruptcy. See 11 U.S.C. § 506(d).
[cited in USAM 4-4.414;
Civil Resource Manual 96]