Is Bankruptcy’s Hybrid Appeal-Filing Deadline Jurisdictional?

In Hamer v. Neighborhood Housing Services of Chicago, the Supreme Court offered a convenient shorthand for determining whether an appeal-filing time limit is jurisdictional: those prescribed by statutes are, but those found only in court-made rules are not. Bankruptcy’s appeal-filing deadline is a bit of both. 28 U.S.C. § 158(c)(2) says a notice of appeal must be filed within an amount of time set by Bankruptcy Rule 8002, which in turn specifies a 14-day filing deadline. After the Supreme Court’s decision in Bowles v. Russell, several courts of appeals held that Rule 8002’s filing deadline was jurisdictional. But after Hamer, litigants are again challenging the rule’s jurisdictional nature. So far they’ve been unsuccessful.

The Tenth Circuit just held in In re Robertson that this appeal-filing deadline is jurisdictional. And it was the first court of appeals to do so since Hamer.

The Supreme Court’s Jurisdiction Project

Over the last several years, the Supreme Court has frequently been called on to say whether a procedural rule is jurisdictional or not. It’s an important distinction. Jurisdictional rules cannot be waived or forfeited, they are not subject to equitable exceptions, and courts must raise the them on their own initiative. Non-jurisdictional rules are “claim-processing” rules, which can be waived or forfeited. The Court’s project of saying what is (and is not) jurisdictional continues, with the Court just holding that Title VII’s charge-filing requirement is a non-jurisdictional, claim-processing rule (PDF, 139KB).

Several of the Supreme Court’s decisions in this area have involved appeal-filing deadlines. The jurisdictional nature of these deadlines can be crucial—if a deadline is jurisdictional, a court has no discretion to excuse a late-filed notice of appeal. This can result in parties losing any opportunity to appeal. (I’ve accordingly argued for a clear and easily identifiable point in district court proceedings when parties have a right to appeal and the clock begins running.)

In Bowles, the Court held that Appellate Rule 4(a)(6)’s limit on extending the time for filing a notice of appeal is jurisdictional. That rule allows a district court to extend the time for filing a notice of appeal when the appellant did not receive notice of the entry of the judgment. (Technically the rule allows the district court to “reopen” the time for filing a notice of appeal, but that’s the functional equivalent of an extension.) The rule limits that reopening period to 14 days. And that same limit is found in the statute that Rule 4(a)(6) partially implements—28 U.S.C. § 2107(c). Because the time limit is set by a statute, it’s jurisdictional. A notice of appeal filed outside that window is ineffective.

In contrast, the Court held in Hamer that Appellate Rule 4(a)(5)’s time limit for extending the time for filing a notice of appeal is not jurisdictional. That rule allows district courts to extend the time for filing a notice of appeal in cases of excusable neglect or good cause (not, like Rule 4(a)(6), only in cases in which the appellant did not receive notice of the judgment). Although a statute—again, 28 U.S.C. § 2107(c)—says district courts can extend the time for filing a notice of appeal in these circumstances, the statute does not place a limit on how long that extension can be. That time limit is only in the rule. So the limit is not jurisdictional.

There is also this term’s Nutraceutical Corp. v. Lambert, which noted that Rule 23(f)’s 14-day time limit for petitioning to appeal a class-certification decision is not jurisdictional; the time limit comes only from the rule, not a statute.

Bankruptcy Rule 8002

The Supreme Court has not yet weighed in on the 14-day period for filing a notice of appeal from a bankruptcy court decision. And that rule is a bit of a hybrid.

Bankruptcy’s appeal-filing deadline comes partially from 28 U.S.C. § 158, which governs jurisdiction in bankruptcy appeals. Section 158(c)(2) says that appeals from a bankruptcy court to either a district court or bankruptcy appellate panel “shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts.” But that subsection doesn’t provide a time for filing a notice of appeal. It instead says that the appeal “shall be taken . . . in the time provided by Rule 8002 of the Bankruptcy Rules.”

Bankruptcy Rule 8002(a)(1) then provides that (with some exceptions irrelevant to the present discussion) “a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed.”

Rule 8002’s jurisdictional nature was litigated after Bowles, and the courts of appeals agreed that the time limit was jurisdictional. But after Hamer, litigants are again raising the issue.

In re Robertson

Last week the Tenth Circuit became the first court of appeals to weigh in on the matter, holding in In re Robertson that Rule 8002 is jurisdictional.¹ The debtor in Robertson sought to appeal a bankruptcy court decision to the bankruptcy appellate panel. But he filed his notice of appeal several months after entry of the judgment. Before the appellate panel, the creditor did not dispute jurisdiction. The appellate panel nevertheless raised the timeliness issue on its own and concluded that Rule 8002’s filing deadline was jurisdictional. The panel accordingly dismissed the appeal for lack of jurisdiction, and the debtor appealed to the Tenth Circuit.

In an earlier post-Bowles (but pre-Hamer) decision, the Tenth Circuit had held that Rule 8002 was jurisdictional. The court had relied on three points in reaching this conclusion:

1. Congress expressly included a timeliness requirement in § 158(c)(2), even though it did not specify the actual time limit.
2. The timeliness requirement came from § 158, which is a jurisdictional statute.
3. Bowles had said that “time limits for filing a notice of appeal have been treated as jurisdictional in American law for well over a century.”

In Robertson, the Tenth Circuit rejected the argument that Hamer had undermined or otherwise changed this analysis. The debtor’s Hamer argument focused largely on the Article I nature of the bankruptcy courts, contending that only time limits that transfer authority among Article III courts are jurisdictional. The debtor argued that all others, including those that transfer authority from an Article I court to another Article I court, are claim-processing rules.

The Tenth Circuit rejected this argument, as Hamer did not treat a court’s constitutional basis as relevant. The Robertson court also pointed to a footnote in Hamer that discussed the Supreme Court’s “clear-statement rule” for distinguishing between jurisdictional and non-jurisdictional rules. Applying that clear-statement rule requires looking at both a procedural rule’s context and the interpretation of similar provisions. Both of these considerations, the Tenth Circuit thought, confirmed its earlier analysis of Rule 8002.

Links

• Banner Bank v. Robertson (In re Robertson), ___ F.3d ____, 2019 WL 2296210 (10th Cir. 2019), available at the Tenth Circuit, Google Scholar, and Westlaw.