Bankruptcy Appeals

09/13/2012

An appeal of a bankruptcy court order or judgment involves unique procedural and jurisdictional considerations. Bankruptcy appeals are different from an ordinary federal court appeal because of the unusually quick time frame for perfecting and briefing the appeal and the likelihood that such an appeal may be subject to substantive review by two appellate courts (the district court or Bankruptcy Appellate Panel and the court of appeals). In approaching a bankruptcy appeal, practitioners must consider a bankruptcy-specific jurisdictional statute, a liberalized view of finality, and a different set of rules depending on whether the appeal is to the district court or the court of appeals. This paper sets forth a nuts-and-bolts approach for handling a bankruptcy appeal and considers some of the more complex jurisdictional issues.

The dramatic changes to the Bankruptcy Code in 2005 included an expansion of the court of appeals’ jurisdiction over bankruptcy court decisions. Congress gave the lower courts power to certify bankruptcy court decisions (whether final or interlocutory) for direct appeal to the court of appeals. One of the principal reasons for this change was concern – by both advocates and members of Congress – that bankruptcy appeals frequently “languished” in the district court and that the circuit courts were not deciding a number of critical bankruptcy issues – and was therefore not establishing precedent in these cases. This paper provides a comprehensive overview of this new direct appeal provision, including the standard for obtaining certification, the mechanics of taking an appeal directly to the court of appeals, and discusses the first set of decisions to construe this new provision. Appellate lawyers are well-suited to providing guidance in determining whether to seek a direct appeal and persuading both the lower court and the court of appeals to permit a direct appeal to go forward.

This paper provides a guide to the rules governing an appeal to the district court and the court of appeals. The most important issue with respect to these relatively straightforward rules is that the deadlines in bankruptcy appeals are much shorter than in ordinary federal court appeals. This paper also addresses two additional issues – the relaxed standard for finality, providing a broader range of orders subject to appeals, and the jurisdictional statute. Although bankruptcy appeals frequently involve technical and specialized issues (much like intellectual-property cases), an appellate lawyer’s involvement in a bankruptcy appeal can nevertheless be quite valuable – from providing guidance on timing and procedural requirements to strategic assessments regarding direct appeals, interlocutory appeals, and finality.

Presented at the 30th Annual Advanced Business Bankruptcy Course, September 13-14, 2012. To read the full presentation, click on the PDF linked below.

Bankruptcy-Appeals-2012.pdf

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