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96.

The "Who, What, When, Where, Why, and How" of Appeals in Bankruptcy Proceedings -- Generally

Samuel R. Maizel
Commercial Litigation Branch
March 15, 1996 (updated to include BAPCPA changes only, November 2006)

I. WHO MAY APPEAL: STANDING

"Standing represents a jurisdictional requirement which is open to review at all stages of the litigation." National Organization For Women, Inc. v. Scheidler, 114 S. Ct. 798, 802 (1994). "Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising of another person's legal rights ...." In re Price, 173 B.R. 434, 439 (Bankr. N.D. Ga. 1994) (quoting Allen v. Wright, 468 U.S. 737, 750-51 (1984)). "A party seeking to invoke ... standing must demonstrate, among other things, that the party has suffered, or is threatened with, 'injury in fact, by which we mean an invasion of a legally protected interest ....'" Price, 173 B.R. at 441 (quoting Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, Fla., 113 S. Ct. 2297, 2302 (1993)).

To have standing to appeal a bankruptcy court order, a party must be a "party aggrieved" by that order. Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737 (3d Cir. 1995) (comprehensive discussion of standing requirement for bankruptcy appeals); In re American Ready Mix, Inc., 14 F.3d 1497, 1500 (10th Cir.), cert. denied, 115 S. Ct. 77 (1994); Int'l Trade Admin. v. Rensselaer Polytechnic Inst., 936 F.2d 744, 747 (2d Cir. 1991). "'This person aggrieved requirement is more exacting than the requirements for general Article III standing,'" In re American Dev. Int'l Corp., 188 B.R. 925, 932 (N.D. Tex. 1995) (quoting In re Andreuccetti, 975 F.2d 413, 416 (7th Cir. 1992)); accord Travelers Ins., 45 F.3d at 741, and "is meant to be a limitation on appellate standing to avoid 'endless appeals brought by a myriad of parties who are indirectly affected by every bankruptcy court order.'" American Ready Mix, 14 F.3d at 1500 (quoting Holmes v. Silver Wings Aviation, Inc., 881 F.2d 939, 940 (10th Cir. 1989)). "Generally, only persons who are 'directly and adversely affected pecuniarily by an order of the bankruptcy court have been held to have standing to appeal that order.'" American Dev. Int'l Corp., 188 B.R. at 932 (quoting Andreuccetti, 975 F.2d at 416). Courts are guided by two factors: (1) is the appellant a "party-in-interest" as defined in 11 U.S.C. § 1109(b), and (2) does the appellant possess a pecuniary interest. In re Salant Corp., 176 B.R. 131, 133 (S.D.N.Y. 1994); see also Travelers Ins. Co., 45 F.3d at 742 ("one is a 'person aggrieved' if the contested order 'diminishes their property, increases their burdens, or impairs their rights.'"); American Ready Mix, 14 F.3d at 1500 (same). Compare Unsecured Creditors Comm. v. Leavitt Structural Tubing Co., 55 B.R. 710 (N.D. Ill. 1985), aff'd, 796 F.2d 477 (7th Cir. 1986) (official unsecured creditors committee did not have standing to contest confirmation of debtor's reorganization plan) and Salant Corp., 176 B.R. at 135 (equity committee appellant lacks standing) with Official Comm. of Equity Sec. Holders v. Mabey, 832 F.2d 299 (4th Cir. 1987), cert. denied, 485 U.S. 962 (1988) (equity committee appellant has standing).

The term "party in interest" is not defined and the "determination calls for a case by case analysis, ... that takes into consideration ... 'the particular purposes of the provision in question.'" In re Peachtree Lane Assocs., Ltd., 188 B.R. 815, 824 (N.D. Ill. 1995) (comprehensive examination of the precedent on what satisfies the standard for being a party in interest); accord In re Johns-Manville Corp., 36 B.R. 743 (Bankr. S.D.N.Y. 1984) (party in interest "must be determined on an ad hoc basis"). It certainly includes creditors and shareholders but may not include a party with an indirect or remote interest. It is "'generally understood to include all persons whose pecuniary interests are directly affected by the bankruptcy proceedings.'" Thirteen Chapter 7 Cases Of Former Trustee Germain, 182 B.R. 375, 377-78 (Bankr. D. Conn. 1995) (quoting In re Hutchinson, 5 F.3d 750, 756 (4th Cir. 1993)). It also includes entities which are not creditors but which have a "practical" or "sufficient" stake in the outcome of the proceedings so that "fundamental fairness requires ... [they] be afforded an opportunity to be heard on the issues that affect them." Peachtree Lane Assocs., 188 B.R. at 827 (non-creditor which is the defendant in an adversary proceeding may challenge the venue of a bankruptcy case because the creditor "has a legally protectible interest in the venue of the adversary proceeding .... [which] in turn, gives them a direct interest in the proper venue of the underlying ... case ....").

Because the US Trustee has broad statutory responsibilities in chapter 11, including the right to raise any issue and to be heard on any issue raised by others, 11 U.S.C. § 307, courts have permitted appellate standing despite its lack of pecuniary interest. In re Columbia Gas Systems Inc., 33 F.3d 294, 296-99 (3d Cir. 1994); In re Revco D.S., Inc., 898 F.2d 498 (6th Cir. 1990). On the other hand, the debtor (as opposed to the debtor-in-possession)'s appeal rights are limited. In re Williams, 181 B.R. 532, 535 (D. Kan. 1995). However, where the debtor is a party in an adversary proceeding, the debtor has standing to appeal an adverse determination even if there is no pecuniary loss. Comjean v. Cruickshank, 191 B.R. 504, 506-07 (D. Mass. 1995).

II. WHAT MAY BE APPEALED

A. Final Orders Or Judgments

Any "final judgment, order, or decree of a bankruptcy judge" may be appealed. 28 U.S.C. § 158(a), Fed. R. Bankr. P. 8001(a) (district courts from bankruptcy courts); 28 U.S.C. §§ 158(d), 1291 (circuit courts from district courts). An order is "final" for appeal purposes when a decision has been entered that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978); In re IBI Sec. Serv., Inc., 174 B.R. 664, 668 (E.D.N.Y. 1994).

In bankruptcy proceedings, finality does not require the entire case to be concluded; rather, due to the extended nature and large number of parties involved in a bankruptcy case, finality is applied to discrete disputes that arise within the larger case. Most courts look at contested matters and adversary proceedings as "stand alone units of litigation" and determine whether the order appealed from disposes of all the claims of all the parties. See Fed. R. Civ. P. 54(b); Fed. R. Bankr. P. 7054(a), 9014; In re Klein, 940 F.2d 1075, 1077 (7th Cir. 1991); In re IBI Sec. Serv., Inc., 174 B.R. 664, 668 (E.D.N.Y. 1994) (order of bankruptcy court may be appealed immediately if it disposes of discrete dispute in larger case, such as determination of a creditor's claim or priority); Compare In re Firstmark Corp., 46 F.3d 653, 658 (7th Cir. 1995) (order is appealable if it (1) resolved substantive rights of the parties in any way, and (2) marked the conclusion of what, but for the bankruptcy, would be the equivalent of a stand alone suit) with In re Prudential Lines, Inc., 59 F.3d 327 (2nd Cir. 1995) (a final order "must completely resolve all of the issues pertaining to a discrete claim, including issues as to the proper relief"); F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 104 (3d Cir. 1988) (whether order is appealable determined by looking to "the impact of the matter on the assets of the bankruptcy estate, the preclusive effect of a decision on the merits, and whether the interests of judicial economy will be furthered"); In re Stone, 6 F.3d 581, 583 n.1 (9th Cir. 1993) (order is appealable where it (1) resolves and seriously affects substantive rights, and (2) finally determines the discrete issue to which it is addressed) and In re Martech USA, Inc., 188 B.R. 847, 849 (Bankr. 9th Cir. 1995) ("Orders that determine and affect substantive rights and have the potential to cause irreparable harm to the losing party are immediately appealable so long as they finally determine the discrete issue to which they are addressed.").

Rule 54(b), Federal Rules of Civil Procedure, allows an immediate appeal when the court enters final judgment on a single claim and certifies it for immediate appeal. Most courts require that (1) the court order completely dispose of one or more claims, and (2) there are not any just reasons for delay. The certifying court must make a clear and cogent explanation of its reasons and the factual and legal determinations supporting that reasoning. In re Southeast Banking Corp., 69 F.3d 1539, 1545-51 (11th Cir. 1995).

1. Irreparable harm
An order is subject to immediate appeal if it (1) directs the immediate delivery of property, and (2) subjects the losing party to irreparable injury if appellate review must await the final outcome of the litigation. Forgay v. Conrad, 47 U.S. 201 (1848); see HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 n.4 (2d Cir. 1995) (questioning whether Forgay doctrine is "still applicable in a multi-claim or multi-party action" in certain circumstances); Matter of Simpson, 36 F.3d 450, 452 (5th Cir. 1994) (judgment compelling defendant to turn over property is appealable as of right); In re Ashoka Enters., Inc., 156 B.R. 343, 345 (S.D. Fla. 1993) (same).

2. Collateral Orders
A "collateral order" is appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); see Swint v. Chambers County Comm'n, 115 S. Ct. 1203 (1995) (order reviewable under Cohen "includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgement in the underlying action"); In re Magic Circle Energy Corp., 889 F.2d 950, 954 (10th Cir. 1989) (applying Cohen). To be unreviewable on appeal from a final judgment, the order must deprive the appellant of a right "that is essentially destroyed if its vindication must be postponed until trial is complete." Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499 (1989). All three requirements must be met to allow "collateral orders" to be appealable. United States v. Weiss, 7 F.3d 1088, 1089 (2d Cir. 1993). Failure to appeal an order under the collateral order doctrine does not bar a later appeal from the final order. "It is well established ... that 'when the appellant appeals the final judgement, that judgment necessarily incorporates all earlier interlocutory decisions' and '[b]y referring to the final order the [appellants] present the whole case to us on appeal.'" In re Peachtree Lane Assocs., Ltd., 188 B.R. 815, 822 (N.D. Ill. 1995) (quoting Glass v. Dachel, 2 F.3d 733, 738 (7th Cir. 1993)).

3. Both Orders Must Be Final
The orders of both the bankruptcy court and the intermediate appellate tribunal must be final in order for the circuit court to exercise jurisdiction. In re Lendvest Mortgage, Inc., 42 F.3d 1181, 1183 (9th Cir. 1994). "'When the bankruptcy court issues what is indisputably a final order, and the district court issues an order affirming or reversing, the district court's order is also a final order ... .'" Lendvest Mortgage, 42 F.3d at 1183 (quoting Sambo's Restaurants, Inc. v. Wheeler (In re Sambo's Restaurants, Inc.), 754 F.2d 811, 814 (9th Cir. 1985)).

Where the district court's order remands a final order back to bankruptcy court for "further significant proceedings on the merits" that is not a final order. See, e.g., In re Lendvest Mortgage, Inc., 42 F.3d 1181, 1183 (9th Cir. 1994); Conroe Office Building Ltd. v. Nichols, 21 F.3d 690 (5th Cir. 1994) (district court order reversing bankruptcy court decision on conversion claim and remanding for significant further proceedings not appealable); Temex Energy, Inc. v. Underwood, Wilson, Berry, Stein & Johnson, 968 F.2d 1003, 1005 (10th Cir. 1992); Schneider v. FmHA, 873 F.2d 1155 (8th Cir. 1989) (district court's reversal and remand of bankruptcy court's order overruling FmHA objection to confirmation of chapter 12 held not to be final, appealable order). If the remanded matter requires more than a mere "ministerial" function and involves the "exercise of considerable judicial discretion," the remand involves significant further proceedings and does not "end the litigation." In re Bucyrus Grain Co., Inc., 905 F.2d 1362, 1365-66 (10th Cir. 1990); accord In re The Wallace & Gale Co., 72 F.3d 21, 24 n.4 (4th Cir. 1995) (order remanding case to bankruptcy court for certification of interlocutory appeal not immediately appellable). Contra In re Dominguez, 51 F.3d 1502, 1506 (9th Cir. 1995) ("Although we ordinarily lack jurisdiction when the lower appellate decision remands for further factual findings related to a central issue on appeal, we may assert jurisdiction if the appellate 'issue is legal in nature and its resolution either 1) could dispose of the case or proceeding and obviate the need for factfinding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand.'").

4. Specific Types of Orders
Civil contempt order is not final for purposes of appeal until (1) a finding of contempt is issued, and (2) an appropriate sanction is imposed. Matter of U.S. Abatement Corp., 39 F.3d 563, 567 (5th Cir. 1994).

Orders denying or granting relief from the automatic stay are final and appealable. See In re Delta Resources, Inc., 54 F.3d 722, 726 (11th Cir. 1995); Sonnax Indus., Inc. v. Tri-Component Prods. Corp., 907 F.2d 1280 (2d Cir. 1990); In re West Elecs. Inc., 852 F.2d 79, 81-82 (3d Cir. 1988) (order denying relief from the stay is final and appealable if it is based on a rejection by the bankruptcy court of the legal basis or theory offered by the creditor for lifting the stay); In re Yellow Cab Co-Op. Ass'n, 192 B.R. 555, 556 (D. Colo. 1996) ("Orders granting or denying relief from the [Bankruptcy] Code's automatic stay provisions are appealable final orders.").

Denial of United States' sovereign immunity defense to debtor's preference action is not immediately appealable. Pullman Constr. Indus. Inc. v. United States, 23 F.3d 1166 (7th Cir. 1994).

B. Interlocutory Orders

1. Injunctive Orders
(a) Appeals from the bankruptcy court
District courts can hear an appeal from any interlocutory order, as long as they are willing. 28 U.S.C. § 158(a)(3), (c). "Generally, leave to take an interlocutory appeal is granted for the same reasons that an interlocutory appeal to the court of appeals may be taken from an order of the district court. ... However, no certification by the bankruptcy court is necessary." In re EDP Med. Computer Sys., Inc., 178 B.R. 57, 59-60 (M.D. Pa. 1995); accord In re Reserve Production, Inc., 190 B.R. 287, 289-90 (E.D. Tex. 1995) (28 U.S.C. § 1292 "guides" district court's discretion in whether to grant leave to appeal interlocutory order. Court allows appeal of preliminary injunction because "[a]s a policy matter, the rulings of an non-Article III bankruptcy court should not be more insulated from appellate review than the rulings of an Article III district court."); In re CIS Corp., 188 B.R. 873, 878 (S.D.N.Y. 1995) (agreeing with 3d, 7th, 9th, and 10th circuit courts that district court may grant leave to appeal without certification by the bankruptcy court). But see In re General Dev. Corp., 179 B.R. 335, 337 (S.D. Fla. 1995) (district court lacks jurisdiction over interlocutory order unless bankruptcy court certifies that there was no just cause for delay of the appeal).

(b) Appeals to the circuit courts of appeal
Circuit courts have appellate jurisdiction for interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1); Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146 (1992); In re Affeldt, 60 F.3d 1292 (8th Cir. 1995) (Appellate court has jurisdiction over permanent injunctions.). An order which explicitly addresses an injunction is appealable under § 1292(a)(1). However, for orders which do not expressly address an injunction to be appealable under § 1292(a)(1), the order must (1) be injunctive in nature, (2) cause serious, if not irreparable, consequences, and (3) be effectively challenged only by immediate appeal. Tri-State Generation And Transmission Assoc., Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir. 1989); Woodward v. Sage Prods., Inc., 818 F.2d 841, 849-50 (Fed. Cir. 1987). To be "injunctive in nature," the order must have the effect of the grant or denial of an injunction. Woodward, 818 F.2d at 850. As a general rule, an order is injunctive in nature and hence, is appealable "only where it grants part or all of the ultimate relief sought by the [party]." United States v. Santtini, 963 F.2d 585, 591 (3d Cir. 1992); Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st Cir. 1983); see also HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 (2d Cir. 1995) ("An order has the practical effect of granting injunctive relief ... if it is directed to a party, enforceable by contempt, and designed to accord some or all of the substantive relief sought by a complaint,... and if the appealing party demonstrates serious, perhaps irreparable consequences.") (internal quotations omitted).

Section 1292 grants jurisdiction to the courts of appeals over appeals from certain interlocutory orders of the district court, including interlocutory orders granting, modifying or dissolving injunctions. 28 U.S.C. § 1292(a)(1). Although § 1292 applies to orders of the district court sitting as a bankruptcy appellate court, Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992), it does not apply to decisions of a bankruptcy appellate panel, Dominguez v. Miller, 51 F.3d 1502, 1506 n.2 (9th Cir. 1995); Vylene Enterprises, Inc. v. Naugles, Inc., 968 F.2d 887, 890 n.4 (9th Cir. 1992); see 1 Collier on Bankruptcy ¶ 3.03[d][ii], at 3-199 n.91 (15th ed. 1996). Hence, where the appeal is from a judgment of the BAP, as opposed to the district court, circuit courts do not have jurisdiction over an appeal from a decision involving an injunction.It would seem prudent, therefore, particularly in light of the recent adoption of bankruptcy appellate panels in various circuits in addition to the Ninth, that in bankruptcy cases where an injunction is involved, we ensure that any intermediate appeal from a bankruptcy court order be taken to a district court and not to a bankruptcy appellate panel.

2. Other interlocutory orders
Appellate courts may hear interlocutory appeals, in their discretion where "exceptional circumstances warrant," when (1) the order appealed from involves a controlling question of law, (2) as to which there is substantial ground for difference of opinion, (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. §§ 158(a) (district courts from bankruptcy courts), 158(c) (bankruptcy appellate panels from bankruptcy courts), 1292(b) (circuit courts from district courts); Matter of Zech, 185 B.R. 334 (D. Neb. 1995); In re Ionosphere Clubs, Inc., 179 B.R. 24, 26-27 (S.D.N.Y. 1995); In re EDP Med. Computer Sys., Inc., 178 B.R. 57, 59-60 (M.D. Pa. 1995); In re 1820-1838 Amsterdam Equities Inc., 176 B.R. 127, 129 (S.D.N.Y. 1994); In re IBI Sec. Serv., Inc., 174 B.R. 664, 669-71 (E.D.N.Y. 1994) (all discussing factors; citing cases). "To establish that an order contains a controlling question of law, it must be shown that either (1) reversal of the bankruptcy court's order would terminate the action, or (2) determination of the issue on appeal would materially affect the outcome of the litigation." IBI Sec. Serv., 174 B.R. at 670; see In re Capen Wholesale, Inc., 184 B.R. 547 (N.D. Ill. 1995) (controlling issue of law need not be outcome determinative; it need only be an "important one, which could have significantly affected the bankruptcy proceedings below"). The Supreme Court has held that, on interlocutory appeals under 28 U.S.C. 1292(b), the court of appeals can exercise jurisdiction over "any issue fairly included within the certified order" and is not limited to the particular issues certified by the district court as controlling issues of law. Yamaha Motor Corp, U.S.A. v. Calhoun, 116 S. Ct. ___, ___ (1996).

Procedure for interlocutory appeals:

When appealing from an interlocutory order, the appellant must file a notice of appeal together with a motion for leave to appeal. 28 U.S.C. § 158(a). The motion must contain: (1) a statement of the facts necessary to an understanding of the issues raised by the appeal, (2) a statement of those issues and the relief sought, (3) a statement of the reasons why an appeal should be permitted, (4) a copy of the judgment, order or decree which is the subject of the appeal. An adverse party may file an opposing response within ten days.

C. "If an order remands a bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, then a court of appeals lacks jurisdiction to review that order under [28 U.S.C.] § 1447(d), regardless of whether the case was removed under § 1441(a) or § 1452(a)." Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494, 497 (1995).

III. WHEN: TIME LIMITS

A. Appeals from the bankruptcy court

The time limits are shorter in bankruptcy appeals than in other federal appellate practice. The notice of appeal must be filed with 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); see generally In re The Wallace & Gale Co., 72 F.3d 21, 24 n.4 (4th Cir. 1995) (noting controversy over "how rigorous Rule 8001(a)'s requirments [that a notice of appeal contain the names of all parties to the bankruptcy order appealed from] are); In re District 65, UAW, 184 B.R. 196, 199 (S.D.N.Y. 1995) (notice of appeal which failed to properly designate order still effective). 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, FRBP] 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). We argue that 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; In re Indian Palms Assocs., LTD., 61 F.3d 197, 203-06 (3d Cir. 1995) (party designating the record on appeal can draw only from the record created in connection with the motion that initiated a contested matter unless that contested matter is sufficiently associated with the general administration of the debtor's estate that the relevant record should include the case files as well as the documents actually offered in the contested matter or that are suitable for judicial notice). Appellant's opening brief must be filed within fifteen days from the date on which the appeal has been 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 Props., 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), FRAP); McKenna v. U.S. Trustee, 177 B.R. 755 (D.R.I. 1994) (repeated late filings warrants dismissal of appeal).

B. Appeals to the circuit courts

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. The district court may, upon a showing of good cause before the time expires or for excusable neglect upon a motion filed not later than thirty days after the expiration of the original sixty days, extend the time for filing. Unexcused failure to timely file the notice of appeal deprives the court of jurisdiction to hear the appeal. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

Appellants opening brief must be filed within forty days after the record is filed. The appellee has thirty days to file a response, and the appellant has fourteen days to file a reply. Fed. R. App. P. 31. All papers except for briefs are deemed filed when received by the clerk. Briefs are deemed filed when mailed.

IV. WHERE: FORUMS

A. Appeals from the bankruptcy court

Appeals from all final judgments, orders and decrees of a bankruptcy court, as well as discretionary interlocutory appeals, are heard in the district court, 28 U.S.C. § 158(a) or in a bankruptcy appellate panel, 28 U.S.C. § 158(b), unless otherwise provided by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). See below. Appeals from decisions of a bankruptcy court are controlled by Part VIII, Federal Rules of Bankruptcy Procedure ("FRBP").

In an appeal from the bankruptcy court, the district court sits as an appellate court. 28 U.S.C. § 1334(b). The district court may affirm, reverse, or modify the bankruptcy court's ruling or remand the case for further proceedings. Fed. R. Bankr. P. 8013.

Although some do, district courts should not refer bankruptcy appeals to a magistrate-judge. Minerex Erdoel, Inc. v. Sinq, Inc., 838 F.2d 781 (5th Cir.), cert. denied, 109 S. Ct. 57 (1988) and In re Elcona Homes Corp., 810 F.2d 136 (7th Cir. 1987) (both holding that bankruptcy appeals may not be referred to magistrates); but see Hall v. Vance, 887 F.2d 1041 (10th Cir. 1989) (parties may consent to magistrate review where district court reserved to itself the final decision).

In the Ninth Circuit, 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 such service. 28 U.S.C. § (b)(6). However, once authorized, the BAP can hear and determine appeals otherwise directed to the district court unless (i) the appellant elects when filing the appeal, or (ii) any other party elects within 30 days after service of the notice of appeal, to have the appeal heard by the district court. 28 U.S.C. § 158(c)(1).

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 BAPCP A'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 § 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. See 69, Appellate Procedures in Bankruptcy, Civil Resource Manual, USAM Title 4 on Direct Certified Appeals for Solicitor General's guidance.

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.

B. Appeals from the district court/BAP to the circuit court

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 FRAP. See Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146 (1992) (courts of appeals are authorized by 28 U.S.C. § 1292 to review orders of district courts or bankruptcy appellate panels entered upon review of interlocutory bankruptcy court order; such jurisdiction is not limited by 28 U.S.C. § 158(d) permitting review of "final" orders); see also In re First Fin. Dev. Corp., 960 F.2d 23 (5th Cir. 1992) (court of appeals lacks jurisdiction to hear appeal of order overruling objections to disclosure statement).

[updated March 2007]