Appellate Law

CA1: First does a little too much in resolving BAPCPA appellate procedural question

By S. COTUS

In re Linda Lynn Weaver, No. 08-8046.  ?The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub. L. No. 109-8, 119 Stat. 23, 202-03. That statute permits direct appeals to the court of appeals, with that court's permission, from bankruptcy court decisions under certain circumstances, including where the bankruptcy court certifies that the appeal satisfies the statutory criteria for permitting such a direct appeal? Alas, the petitioners failed to timely file a notice of appeal, as required by Interim Bankruptcy Rule 8001(f)(1) (for D. Mass), and ?no authorization of the direct appeal was sought or obtained from this court, as required by 28 U.S.C. § 158(d)(2)(A).?  Okay, this seems pretty easy.

Unfortunately, the First has to take it a bit far and say that the ?procedural requirements referenced [a show-cause order] are deemed to be jurisdictional or, rather, mere claims-processing rules... Under [Bowles v. Russell, 127 S. Ct. 2360, 2364-66 (2007)], that determination depends, in turn, on whether the requirements are based on statutes, in which case they are deemed jurisdictional, or merely on court-promulgated rules, in which case they are not.?  Problem is: Bowles didn?t say all statutory requirements were jurisdictional.  Urgh!

But, then, the First says ?Without resolving that jurisdictional question, we exercise our discretion under section 158(d)(2)(A) to deny leave to appeal.?  The First then explains how the rules are going to eliminate all these problems.

Full post as published by Appellate Law and Practice on September 17, 2008 (boomark / email).