69.

Appellate Procedures in Bankruptcy

A. Bankruptcy Appeals To The District Court Or Bankruptcy Appellate Panel. 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. § 158(c)(1). 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 days—weekends 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[2]. 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. Generally. 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. 1292(b). 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 in Civil Resource Manual 99. Interim Bankruptcy Rules 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 4-1.324, supra. 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]