New Split on Bankruptcy’s Appeal Deadline

In In re Tennial, the Sixth Circuit held that bankruptcy’s 14-day deadline for filing an appeal is not jurisdictional. In doing so, the court split with every other court of appeals to address this issue. The Supreme Court has drawn a fairly clear line between deadlines found in statutes—which are jurisdictional—and those found only in rules of procedure—which aren’t. Bankruptcy’s appeal deadline is a bit of a hybrid. It comes partially from a statute—28 U.S.C. § 158(c)(2)—and partially from a rule—Federal Rule of Bankruptcy Procedure 8002. The statutory part has led other courts to conclude that the 14-day deadline is jurisdictional. But the Sixth Circuit explained that the statute merely says that appeals must be filed within a time specified by the Bankruptcy Rules. The actual 14-day deadline comes only from those rules. The court accordingly concluded that the bankruptcy appeal deadline is a non-jurisdictional claim-processing rule.

The Jurisdictional/Non-Jurisdictional Project

For some time now, the Supreme Court has tried to clean up the law on which procedural rules are truly jurisdictional. A jurisdictional rule comes with several consequences: failure to comply with the rule cannot be waived or forfeited, courts cannot create equitable exceptions to the rule, and courts must raise non-compliance with the rule on their own. But not all procedural rules are jurisdictional. Some are instead claim-processing rules. Courts must still enforce claim-processing rules when a party raises them. But claim-processing rules can be waived or forfeited.

Appeal deadlines have received particular jurisdictional scrutiny. And the Supreme Court has drawn a fairly clear line between jurisdictional and non-jurisdictional appeal deadlines: those found in statutes are jurisdictional, while those found only in rules of procedure are not.

So, for example, in Bowles v. Russell, the Supreme Court held that the 14-day limit on reopening the time to file a notice of appeal is jurisdictional. Although found in Federal Rule of Appellate Procedure 4(a)(6), that 14-day limit comes from 28 U.S.C. § 2107(c). In contrast, Rule 4(a)(5)(C)’s 30-day limit for extending the time to file an appeal is not jurisdictional. That deadline comes only from the rules. So the Court held in Hamer v. Neighborhood Housing Services of Chicago that the deadline was a non-jurisdictional claims-processing rule. Similarly, Federal Rule of Civil Procedure 23(f)’s 14-day deadline for petitioning to appeal a class-certification decision is not jurisdictional; the time limit comes only from the rule.

Bankruptcy’s Hybrid Appeal Deadline

Bankruptcy has a unique appeal deadline. A statute—28 U.S.C. § 158(c)(2)—gives the district court’s jurisdiction to review bankruptcy decisions and requires that appeals be filed within the time set by Federal Rule of Bankruptcy Procedure 8002. Rule 8002(a)(1), in turn, sets a 14-day limit. Bankruptcy’s appeal deadline is thus a hybrid appeal deadline—part statute, part rule.

Even after the Supreme Court’s decisions in Bowles and Hamer, courts have treated bankruptcy’s appeal deadline as jurisdictional. The Tenth Circuit was the first court of appeals to do so after Hamer. (Two bankruptcy appellate panels had reached this same conclusion before the Tenth Circuit.) The Seventh Circuit reached the same conclusion last month. The First Circuit has noted that Hamer might warrant revisiting its decisions on the jurisdictional nature of Rule 8002(a)(1), though the court saved that issue for another day.

The Sixth Circuit’s Decision in Tennial

The Untimely Appeal

Tennial involved an appeal from an order lifting an automatic bankruptcy stay. Simplifying a bit, the debtor in Tennial filed for Chapter 13 bankruptcy, which automatically stayed a foreclosure action against her home. The bankruptcy court later lifted the automatic stay. The debtor then waited about a month to appeal that decision to the district court.

Given bankruptcy’s 14-day deadline for appealing, the debtor’s notice of appeal was about two weeks late. The mortgage company accordingly asked the district court to dismiss the appeal as untimely. The district court agreed, and the debtor sought further review in the Sixth Circuit.

Non-Jurisdictional, but Still Late

The Sixth Circuit affirmed the district court’s conclusion that the appeal was untimely. But before doing so, the court addressed the jurisdictionality of bankruptcy’s appeal deadline. And the court concluded that the deadline was not jurisdictional. It gave two reasons for that holding.

First, the statute did not clearly state a jurisdictional limit. The Supreme Court said in Arbaugh v. Y&H Corp. that “Congress must ‘clearly state[]’ that the requirement implicates the judiciary’s subject matter jurisdiction—its ‘statutory or constitutional power to adjudicate the case’—before the federal courts will treat the requirement as a non-waivable and non-forfeitable jurisdictional imperative.” The Sixth Circuit concluded that nothing in § 158(c)(2) indicates any Congressional intent to create a jurisdictional deadline, much less a clear intent.

Second, the actual time limit comes from a rule of procedure, not a statute. Given the Supreme Court’s distinction between deadlines found in statutes and those found only in rules of procedure, “[a] bankruptcy appellate deadline is not jurisdictional when Congress did not create it.” Bankruptcy’s actual time limit comes from Rule 8002(a)(1). Granted, § 158(c)(2) refers to an appeal deadline. But that actual deadline isn’t in the statute. So Congress didn’t set the deadline; the Supreme Court did (via the rulemaking process).

The Sixth Circuit acknowledged that it was alone in its non-jurisdictional treatment of bankruptcy’s appeal deadline. But the court was convinced that its reading was the correct one.

The Sixth Circuit accordingly concluded that bankruptcy’s 14-day appeal deadline is a non-jurisdictional claims-processing rule. But that didn’t mean that the court could excuse noncompliance. The deadline was still mandatory, and the appellee in Tennial had invoked the debtor’s failure to comply with the deadline. The district court was accordingly correct in dismissing the appeal as untimely.

In re Tennial, 2020 WL 6304352 (6th Cir. Oct. 28, 2020), available at the Sixth Circuit and Westlaw.