This case clarifies the effect of an untimely — but unobjected-to — notice of appeal in a bankruptcy matter under Federal Rule of Appellate Procedure 6(b).
Tze Wung Consultants appealed the district court’s judgment to this Court on September 20, 2012, 51 days after the district court entered its judgment and past the 30-day time limit that is prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A) and incorporated into bankruptcy appeals through Rule 6(b)(1). (Meanwhile, Appellants Trendi Sportswear and Indu Craft filed appeals on August 30, 2012. See Nos. 12-3515-ev, 12-3618-ev.) In December 2012, Appellee Bank of Baroda moved to consolidate the three separate appeals, but Bank of Baroda made no mention of the fact that Tze Wung Consultants’ appeal was untimely. A panel of this Court ordered the appeals to be heard in tandem and sua sponte directed Tze Wung Consultants and Bank of Baroda to file letter briefs addressing whether this Court has jurisdiction over Tze Wung Consultants’ untimely appeal. We conclude that the 30-day time limit governing appeals from a district court’s judgment as an intermediate appellate body in a bankruptcy case (and made applicable here by virtue of Federal Rule of Appellate Procedure 6(b)(1)) is a nonjurisdictional claim-processing rule, so that untimely appeals can proceed to the merits if the opposing party fails properly to object. Because Bank of Baroda waived its objection to Tze Wung Consultants’ untimely appeal by failing to make such an objection, we act within our jurisdiction in allowing Tze Wung Consultants’ appeal to proceed along with that of the other Appellants in this matter.
BACKGROUND
The history between the parties to this case is long and complicated. The question before this panel relates solely to the timeliness of one Appellant’s appeal to this Court; we therefore limit our review of the facts of the case to those relevant to the instant appeal, as set forth by the district court. Further background on the parties and ongoing litigation can be found in the following related cases:
Bank of India v. Trendi Sportswear, Inc.,
Meanwhile, in 1989, Indu Craft’s affiliate Trendi Sportswear 1 was sued by the Bank of India for defaulting on a promissory note. Trendi Sportswear filed a third-party action against Indu Craft, alleging that Indu Craft’s failure to supply goods caused the default. In turn, Indu Craft brought a fourth-party action against Bank of Baroda. In 1991, summary judgment in an amount of over $2.2 million, with interest, was awarded to the Bank of India.
In 1997, Indu Craft filed a petition for bankruptcy under Chapter 11. Trendi Sportswear filed a claim for damages relating to its third-party action. In March 1999, Indu Craft’s Plan of Reorganization was confirmed by the bankruptcy court; under the Plan, Indu Craft consented to the entry of judgment against it in Trendi Sportswear’s third-party action. The bankruptcy court later entered that judgment in the amount of $21,101,348.47. Indu Craft thereafter unsuccessfully pursued its fourth-party action against Bank of Baroda to indemnify it in the amount of the judgment.
See Bank of India v. Trendi
Sportswear;
Inc.,
In March 2007, Appellants moved the bankruptcy court for an order eliminating or temporarily suspending the bankruptcy plan’s discharge of the Trendi Sportswear judgment in an effort to renew the pursuit of Indu Craft’s fourth-party indemnification claim against the Bank of Baroda. The bankruptcy court (Drain, /.) denied Appellants’ motions in August 2007. Tren-di Sportswear timely moved for reconsideration pursuant to Federal Rule of Bankruptcy Procedure 9023.
2
In 2011, Tze Wung Consultants — which is now Indu Craft’s sole shareholder — filed a motion under Bankruptcy Rule 9024.
3
The bankruptcy court denied both motions in July 2011. Appellants timely appealed from the bankruptcy court’s 2007 and 2011 orders.
See In re Indu Craft Inc.,
Nos. 11 Civ. 5996, 11 Civ. 6303, 11 Civ. 6304,
DISCUSSION
Federal Rule of Appellate Procedure 6 sets forth procedures to be followed in appeals in bankruptcy cases from a final judgment of a district court or bankruptcy appellate panel. Rule 6(b), applicable here, discusses procedures for appeals from the district court or a bankruptcy appellate panel exercising appellate jurisdiction. 5 Rule 6(b)(1) specifies that the Federal Rules of Appellate Procedure “apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b)” with some exceptions not applicable here. 6
One of the Federal Rules of Appellate Procedure made applicable here pursuant to Rule 6(b)(1) is Rule 4(a)(1), which governs the timing of appeals in a civil case. Rule 4(a)(1)(A) specifies that “except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Rule 4(a)(1)(A) is codified at 28 U.S.C. § 2107(a). Because Rule 6(b)(1) incorporates Rule 4(a)(1)(A), a party appealing from a final judgment, order, or decree of a district court or bankruptcy appellate panel to a court of appeals has 30 days to appeal from entry of the order or judgment.
See Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Custom Air
The question relevant to this case is whether, in the absence of an objection, an untimely notice of appeal from the judgment of a district court or bankruptcy appellate panel exercising appellate jurisdiction deprives a court of appeals of jurisdiction: i.e., whether Rule 6(b)(1) is a jurisdictional rule or merely a nonjurisdic-tional “claim-processing” rule.
I.
Over the last ten years, the Supreme Court has clarified the difference between jurisdictional and nonjurisdictional, claim-processing rules. In
Kontrick v. Ryan,
The Court continued its consideration
of
jurisdictional rules in
Arbaugh v. Y & H Corp.,
If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.
In
Bowles v. Russell,
The Supreme Court affirmed, stating that the “taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’ ”
Bowles,
Most recently, in
Sebelius v. Auburn Regional Medical Center,
— U.S. -,
II.
Though we have not before examined Federal Rule of Appellate Procedure 6(b)(1) for its jurisdictional effect, we conclude that it is nonjurisdictional pursuant to the Supreme Court’s guidance in this area. The Federal Rules of Appellate Procedure are promulgated and amended by the Supreme Court, and further amended by Acts of Congress. See 28 U.S.C. § 2072(a) (“The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts ... and courts of appeals.”); H. Comm, on the Judiciary, 112th Cong., Federal Rules of Appellate Procedure (Comm. Print 2013). Some rules of appellate procedure, like Rule 4(a)(1), are codified by statute. See 28 U.S.C. § 2107(a). Rule 6(b)(1), however, is not codified. Supreme Court precedent has made clear that classifying a statutory limitation as jurisdictional requires a clear statement from Congress; thus, because Rule 6(b)(1) is nonstatutory, we cannot conclude that Congress clearly intended the courts to treat its application as jurisdictional.
Nor does Rule 6(b)(l)’s reference to Rule 4(a)(1) render the time limit jurisdictional. In appeals from civil cases, Federal Rule of Appellate Procedure 4(a)(1), codified at 28 U.S.C. § 2107(a), is a jurisdictional rule circumscribing a court of appeals’ jurisdiction to the 30-day time period after entry of judgment. “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”
In re Am. Safety Indem. Co.,
Rule 6(b)(l)’s incorporation of the Rule 4(a)(1) time limit makes that time limit
mandatory,
in that an objection will require courts to dismiss the appeal, but that time limit is not jurisdictional.
See, e.g., Eberhart v. United States,
III.
Our decision in
In re Siemon,
The Tenth Circuit recently faced the issue of an untimely appeal of a bankruptcy case to a district court and clarified why district courts lack subject matter jurisdiction over these untimely appeals:
Congress did explicitly include a timeliness condition in 28 U.S.C. § 158(c)(2)— the requirement that a notice of appeal be filed within the time provided by Rule 8002(a). Furthermore, the timeliness requirement contained in Section 158(c)(2) is located in the same section granting the district courts and bankruptcy appellate courts jurisdiction to hear appeals from bankruptcy courts— Section 158(a)-(b).
.... It is true that bankruptcy rules alone cannot create or withdraw jurisdiction. Here, however, it is Section 158(c)(2) that is determining jurisdiction by incorporating the time limits prescribed in Rule 8002(a).
In re Latture,
Unlike the reference to time limits specified in § 158(c)(2), 28 U.S.C. § 158(d)(1)— which confers jurisdiction to courts of appeals over final decisions, judgments, and orders of district courts acting as appellate courts over bankruptcy decisions — makes no reference to any timeliness requirement. The only rule referencing circuit court appellate procedures and placing time limits on the appeal of bankruptcy cases from district courts and bankruptcy appellate panels is Rule 6(b)(1), a
judge-created
rule. Though time limits are prescribed by statute for appeals from civil cases, and though time limits are prescribed by statute for appeals to district courts acting as appellate courts over bankruptcy matters, there is no statutory requirement mandating time limits for appeals to circuit courts of bankruptcy cases from intermediate appellate courts.
11
Ab
In light of our holding, we need not reach Tze Wung Consultants’ argument that its self-styled motion for reconsideration under Rule 59(e) was actually a motion for rehearing under Rule 8015; either way, the appeal to this Court was untimely. Moreover, we note that Tze Wung Consultants filed the motion 23 days after the entry of judgment by the district court, outside Rule 8015’s fourteen-day window. See Fed. R. Bankr.P. 8015.
We also do not reach Tze Wung Consultants’ argument that the doctrine of unique circumstances applies. Such an argument is moot insofar as we hold that Appellant’s untimely filing only violates a nonjurisdic-tional rule, and that Bank of Baroda failed to object. Moreover, the doctrine of unique circumstances would not save Tze Wung Consultants’ appeal if Rule 6(b)(1) were jurisdictional. See
Bowles,
CONCLUSION
We conclude that Rule 6(b)(1) is a non-jurisdictional rule. Where an opposing party fails to object to an untimely appeal to a court of appeals from a bankruptcy appellate panel or district court exercising appellate jurisdiction, the opposing party forfeits the objection, and this Court has jurisdiction over the untimely appeal. Bank of Baroda did not object to Tze Wung Consultants’ untimely appeal below or in its request for consolidation of appeals to this Court; it therefore waived its objection to the nonjurisdictional rule violation. Accordingly, this Court has jurisdiction over Tze Wung Consultants’ appeal, which we permit to proceed.
Notes
. Indu Craft and Trendi Sportswear were both owned by the same individual owner prior to 1992.
. Federal Rule of Bankruptcy Procedure 9023 states: "[e]xcept as provided in this rule and Rule 3008, Rule 59 [of the Federal Rules of Civil Procedure] applies in cases under the Code. A motion for a new trial or to alter or amend a judgment shall be filed, and a court may on its own order a new trial, no later than 14 days after entry of judgment.”
. Federal Rule of Bankruptcy Procedure 9024 provides:
Rule 60 [of the Federal Rules of Civil Procedure] applies in cases under the Code except that (1) a motion to reopen a case under the Code or for the reconsideration of an order allowing or disallowing a claim against the estate entered without a contest is not subject to the one year limitation prescribed in Rule 60(c), (2) a complaint to revoke a discharge in a chapter 7 liquidation case may be filed only within the time allowed by § 727(e) of the Code, and (3) a complaint to revoke an order confirming a plan may be filed only within the time allowed by § 1144, § 1230, or § 1330.
. The notice of appeal filed on September 20, 2012, was defective; it was corrected on September 27, 2012.
. This case does not concern, and we do not address, Rule 6(a), involving appeals taken from a judgment of a district court exercising original jurisdiction in a bankruptcy case pursuant to 28 U.S.C. § 1334.
. One of these exceptions is germane to this case: although the time to file most civil appeals does not begin to run during the pendency of a Rule 59 motion, see Fed. R.App. P. 4(a)(4)(A)(iv), this rule is explicitly excepted from applicability in the case of an appeal taken from the order of a district court exercising appellate jurisdiction in a bankruptcy case, see Fed. R.App. P. 6(b)(1)(A). Thus, the relevant period within which to file an appeal runs from the entry of the judgment, not from the decision on the motion for reconsideration.
. Objections based on nonjurisdictional claim-processing rules may be waived or forfeited, while a jurisdictional issue can be raised at any time throughout the proceedings.
See Kontrick,
. As relevant here, the statute defines "employer” for purposes of Title VII to include only businesses with fifteen or more employees for a certain portion of the present or preceding calendar year. See 42 U.S.C. § 2000e(b).
. The scope of
Bowles
has since been clarified. In
Reed Elsevier, Inc. v. Muchnick,
In
Henderson ex rel. Henderson
v.
Shinseki,
the Court, along similar lines, held that the 120-day time limit for filing an appeal to the Veterans Court under 38 U.S.C. § 7266(a) was a nonjurisdictional claim-processing rule. Again, the Court clarified that
“Bowles
did not hold categorically that every deadline for seeking judicial review in civil litigation is jurisdictional,” but emphasized the importance of examining the scheme Congress created for review of the claims at issue.
Henderson,
.
See In re Vazquez Laboy,
. To be sure, the fact that Rule 6(b)(1) is a nonjurisdictional rule does not mean that courts of appeals
must
necessarily accept an untimely-filed, unobjected-to appeal. We need not, and so do not, address this question.
Cf. Frias,
. Our decision in
In re WorldCom, Inc.,
Although the opinion in
WorldCom
begins by quoting the Supreme Court admonishment from
Bowles v. Russell
that "[t]he taking of an appeal within the prescribed time is mandatory and jurisdictional,”
id.
at 329 & n. 1, the case was not decided on jurisdictional grounds. Thus, its opening language is
dicta,
and we are not bound by it.
See, e.g., Willis Mgmt. (Vt.), Ltd. v. United States,