In re: YAVAUGHNIE RENEE WILKINS, Debtor. YAVAUGHNIE RENEE WILKINS, Appellant, v. JOHN J. MENCHACA, Chapter 7 Trustee; SCHREIBER FAMILY TRUST dated March 22, 1989, Appellees.
BAP Nos. CC-17-1335-KuLS, CC-17-1337-KuLS, CC-17-1346-KuLS (Related Appeals); Bk. No. 2:16-bk-12328-SK
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
JUN 28 2018
ORDERED PUBLISHED; Argued and Submitted on May 24, 2018 at Pasadena, California; Appeal from the United States Bankruptcy Court for the Central District of California; Honorable Sandra R. Klein, Bankruptcy Judge, Presiding
Before: KURTZ, LAFFERTY, and SPRAKER, Bankruptcy Judges.
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
OPINION
Appearances: Andrew M. Wyatt of Wyatt Law argued for appellant Yavaughnie Renee Wilkins; William J. Wall argued for appellee Schreiber Family Trust.
I. PROCEDURAL HISTORY
In these related appeals, chapter 71 debtor Ms. Yavaughnie Wilkins appeals from the bankruptcy court‘s (1) Order Granting Trustee‘s Motion For Conversion To Chapter 7 (Conversion Order) and from the portion of the Order Denying Ms. Wilkins’ Motion for Reconsideration related to the Conversion Order (BAP No. CC-17-1335); (2) Order Granting Trustee‘s Motion to Sell Real Estate (Sale Order) and from the portion of the Order Denying Ms. Wilkins’ Motion For Reconsideration related to Sale Order (BAP No. CC-17-1337); and (3) Order Granting Turnover Order and Writ of Possession (BAP No. CC-17-1346).
Ms. Wilkins filed a single notice of appeal which was untimely filed as to all of the above-referenced orders. The BAP Clerk‘s office issued a notice of deficiency requesting the parties to explain why these appeals should not be dismissed. Ms. Wilkins’ counsel responded by requesting an extension of time to appeal under
Schreiber Family Trust (SFT),2 responded similarly and also contended that counsel‘s request for an extension of time to appeal was untimely under
In light of the Supreme Court‘s decision in Hamer v. Neighborhood Housing Services of Chicago, 138 S.Ct. 13 (2017), the Panel sua sponte requested further briefing on whether the 14-day time deadline for filing an appeal from a bankruptcy court‘s decision was jurisdictional, thereby requiring dismissal of these appeals, or whether the time deadline was a mandatory claim-processing rule subject to waiver or forfeiture.
Having reviewed the briefs from Ms. Wilkins and SFT and considered the oral arguments of counsel, we conclude that the 14-day time deadline in
II. JURISDICTION
We have jurisdiction to determine our own jurisdiction and consider the issue de novo. Gugliuzza v. Fed. Trade Comm‘n (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017). The Panel‘s
first consideration on appeal is our jurisdiction. Id.
III. DISCUSSION
A. Time Deadline For Appeal: The Jurisdictional/Claim-Processing Rule Dichotomy
In Hamer, the Supreme Court considered whether the maximum time a court
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
In a unanimous decision, the Hamer court held that
Only Congress may determine a lower federal court‘s subject-matter jurisdiction. Accordingly, a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time. A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.
138 S. Ct. at 17 (citations and internal quotation marks omitted).
The court further noted that the distinction between a jurisdictional rule and a claim-processing rule is “critical” because “[f]ailure to comply with a jurisdictional time prescription . . . deprives a court of adjudicatory authority over the case, necessitating dismissal-a ‘drastic’ result.” Id. However, “[m]andatory claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited.” Id. at 17-18 (citing Manrique v. United States, 581 U.S. ---, 137 S. Ct. 1266, 1271-1272 (2017)). The Hamer court reserved the issue whether mandatory claim-processing rules may be subject to equitable exceptions. Id. at 18 n.3 (citing Kontrick v. Ryan, 540 U.S. 443, 457 (2004)).
Hamer follows a line of Supreme Court cases which have considered anew the historical use of the term “jurisdictional”
in connection with time deadlines set forth in statutes versus procedural rules. The Supreme Court‘s precedent, including Hamer, shapes a rule of decision that is both clear and easy to apply:
“If a time prescription governing the transfer of adjudicatory authority from one Article III
court to another appears in a statute, the limitation is jurisdictional; otherwise the time specification fits within the claim-processing category.”
Hamer, 138 S. Ct. at 20 (citations omitted); cf. Kontrick, 540 U.S. 443 (finding
In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another, the Supreme Court has applied the clear-statement rule: “A rule is jurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional.‘” Hamer, 138 S. Ct. at 20 n.9 (citing Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006))). Accordingly, we must examine whether there is any clear indication that Congress wanted the 14-day time deadline to file a notice of appeal in
When applying the clear statement rule, the Supreme Court reminds us that “‘most [statutory] time bars are nonjurisdictional.‘” Hamer, 138 S. Ct. at 20 n.9 (alteration in original) (quoting United States v. Kwai Fun Wong, 575 U.S. ----, 135 S. Ct. 1625, 1632 (2015)).
In Henderson v. Shinseki, the Supreme Court also observed that the statute/rule distinction is not quite that simple to apply because Congress is free to attach the conditions that go with the jurisdictional label to a deadline that the Court would normally consider a claim-processing rule. 562 U.S. 428, 435 (2011) (citing Bowles v. Russell, 551 U.S. 205, 209-210 (2007)). The Court stated that in determining whether Congress intended a particular provision to be jurisdictional, “[c]ontext, including this Court‘s interpretation of similar provisions in many years past, is relevant. When a long line of this Court‘s decisions left undisturbed by Congress has treated a similar requirement as jurisdictional, we will presume that Congress intended to follow that course.” Henderson, 562 U.S. at 436 (citations and internal quotation marks omitted); see also Sebelius, 568 U.S. at 153-154 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010), for the same proposition).
B. Analysis
Mindful of these guidelines and the Supreme Court‘s caution against reckless use of the term “jurisdictional,” we turn to
jurisdictional grants at subsection (c)(2), the statute provides:
An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules.
“To determine whether Congress has made the necessary clear statement, we examine the text, context, and relevant historical treatment of the provision at issue.” Duggan v. Comm‘r of Internal Revenue, 879 F.3d 1029, 1032 (9th Cir. 2018) (citing Musacchio v. United States, --- U.S. ----, 136 S. Ct. 709, 717 (2016)). Here, examination of these factors shows that the 14-day time deadline in
First, the historical treatment of the taking of an appeal indicates that the 14-day time limit is jurisdictional. The Supreme Court has always said without exception that procedural conditions for appealing a case from one Article III court to another are jurisdictional. “When an appeal is ‘not taken within the time prescribed by law,’ the ‘Court of Appeals [is] without jurisdiction.‘” Gonzalez, 565 U.S. at 159 (Scalia, J., dissenting) (citing George v. Victor Talking Machine Co., 293 U.S. 377, 379 (1934); United States v. Robinson, 361 U.S. 220, 229-230 (1960)).
For decades, the Ninth Circuit has consistently construed the time deadline in
non-Article III court in accordance with this precedent. The district court in In re Melcher, No. 3:16-cv-05982-WHA, 2017 WL 1175590, at *2-3 (N.D. Cal. Mar. 29, 2017), briefly summarized the history of the Ninth Circuit‘s application of the time deadline in
As our court of appeals explained in [Gough v. Wells Fargo Bank (In re Best Distribution Co.)], 576 F.2d 1360 (9th Cir. 1978), prior to 1938, petitions for review from bankruptcy orders had to be filed within a “reasonable time” unless local rules provided a specific period. In 1938, however, Section 39(c) of the Bankruptcy Act set forth a 10-day time limit for the filing of such petitions “to provide a uniform degree of finality to orders of bankruptcy judges.” Id. at 1362. In interpreting the 10-day time limit, “the circuits divided on whether the limitation merely restricted the right to file petitions for review, or whether it also restricted the district courts’ discretionary power to entertain late petitions.” Id. at 1362-63. In 1942, the Supreme Court held that Congress had expressed no intention, by enacting Section 39(c), to limit the traditional discretion of district courts in this area. Id. at 1363 (citing Pfister v. N. Ill. Fin. Corp., 317 U.S. 144, 152-53 (1942)). “Dissatisfied with the lack of finality that accompanied the discretionary power to entertain late petitions, Congress amended [Section 39(c)] in 1960 for the specific purpose of legislatively overruling Pfister.” Ibid. (citing [Shannon v. Benefiel (In re Benefiel)], 500 F.2d 1219, 1220-21 (9th Cir. 1974)). Subsequent decisions by our court of appeals therefore “strictly construed and compulsorily applied” the 10-day limitation “to negate the discretion afforded the reviewing court” under Pfister, holding that untimely notice of appeal from the bankruptcy court deprived the reviewing district court of jurisdiction. Id. at 1363-64.
In 1973,
Federal Rule of Bankruptcy Procedure 802 superseded Section 39(c). Id. at 1364; [Headlee v. Ferrous Fin. Servs. (In re Butler‘s Tire & Battery Co., Inc.)], 592 F.2d 1028, 1030 (9th Cir. 1979). Although [Rule] 802 carried forward the 10-day time limit from Section39(c), it otherwise paralleled [FRAP] 4(a).3 Butler‘s Tire & Battery, 592 F.2d at
1031. Our court of appeals thus declined in Butler‘s Tire & Battery to rely on decisions construing Section 39(c), including [In re] Best Distribution, in construing [Rule] 802. Id. at 1030-31. Nonetheless, after applying [Rule] 802 with the guidance of case law concerning
FRAP 4(a) and its predecessor,Federal Rule of Civil Procedure 73(a) , our court of appeals again concluded that untimely notice of appeal from the bankruptcy court deprived the district court of jurisdiction. Id. at 1034. This conclusion comported with well-established precedent holding thatFRAP 4(a) ‘s time period for filing a notice of appeal is also “mandatory and jurisdictional.” See, e.g., Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir. 1981) (citing Browder v. Dir., Dept. of Corr. of Ill., 434 U.S. 257, 264 (1978), superseded in part by statute on other grounds as recognized in Ukawabutu v. Morton, 997 F. Supp. 605, 608 (D.N.J. 1998)).Although Butler‘s Tire & Battery recognized the limited scope of past decisions construing Section 39(c), the underlying principle of those decisions-that untimely filing of a notice of appeal from the bankruptcy court is jurisdictional-remained instructive to subsequent decisions applying [Rule] 802 and its successors. For example, [Ramsey v. Ramsey (In re Ramsey)], 612 F.2d 1220 (9th Cir. 1980), which cited Butler‘s Tire & Battery for the principle that “untimely notice deprives the district court of jurisdiction to review the bankruptcy court‘s order or judgment,” also cited Butler‘s Tire & Battery, [In re] Best Distribution, and other decisions dealing with Section 39(c) for the proposition that our court of appeals “has strictly construed and compulsorily applied the ten-day requirement.” Id. at 1222. And [Greene v. United States (In re Souza)], 795 F.2d 855 (9th Cir. 1986)-applying FRBP 8002, the “virtually identical” successor to FRBP 802-in turn cited Ramsey for the principle that “untimely filing of the notice
of appeal is jurisdictional.” Id. at 857. In both Ramsey and Souza, our court of appeals concluded that untimely notice of appeal from the bankruptcy court deprived the district court of jurisdiction.
In [Anderson v. Mouradick (In re Mouradick)], our court of appeals cited both Ramsey and Souza, among other decisions, for the same core principle that “[t]he provisions of
Bankruptcy Rule 8002 are jurisdictional; the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court‘s order.” 13 F.3d [326, 327 (9th Cir. 1994)]. But Mouradick also noted that “[s]upport for this admittedly harsh result is found in the cases interpreting [FRAP 4(a)], the analog to [Rule 8002],” and reiterated that the provisions of the former are “mandatory and jurisdictional.” Id. at 328.In short, whether by carrying forward the approach of strict construction and compulsory application from the days of Section 39(c) or by analogy to FRAP 4(a) , our court of appeals has consistently held that the time limit for filing a notice of appeal from the bankruptcy court is mandatory and jurisdictional.This strict construction, which had persevered through the evolution from Section 39(c) to [Rule] 802 to [Rule] 8002, also survived a 2009 amendment to [Rule] 8002 that changed the 10-day period to a 14-day period. See Advisory Committee Notes to [Rule] 8002. Thus, in 2016, our court of appeals in Ozenne [v. Chase Manhattan Bank (In re Ozenne)] cited Mouradick for the proposition that the “mandatory and jurisdictional” deadline to file an appeal “also applies to federal bankruptcy appeals.” 841 F.3d [810, 814 (9th Cir. 2016)].
In re Melcher, No. 3:16-cv-05982-WHA, 2017 WL 1175590, at *2-3 (N.D. Cal. Mar. 29, 2017) (emphasis added).
We are bound to follow the Ninth Circuit‘s strict construction and compulsory application of the time limit for filing notices of bankruptcy appeals under
reasoning of [prior Ninth Circuit precedent] unless it had been effectively overruled or was clearly irreconcilable with a case from the relevant court of last resort.“). Further, the Supreme Court has noted that “[c]onsiderations of stare decisis have special force in the area of statutory interpretation, for here, . . . the legislative power is implicated, and Congress remains free to alter what we have done.” Hilton v. S. Carolina Pub. Rys. Comm‘n, 502 U.S. 197, 202 (1991). Congress has had decades to change the Ninth Circuit‘s treatment of the time deadline in
In the end, there is nothing in Hamer that gives us a reason to reexamine the Ninth Circuit‘s longstanding construction of the time deadline in
jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.“). Context thus confirms that the 14-day time deadline imposes a jurisdictional limit.
Moreover, here, unlike Hamer, there is a statutory basis for applying the 14-day time deadline in
Like
Panel. Yet it does contain a timeliness condition by the language “in the time provided by Rule 8002(a).” This is the sort of “built-in time constraint” that makes the time deadline contained in the rule jurisdictional. See Smith v. Gartley (In re Berman-Smith), 737 F.3d 997, 1003 (5th Cir. 2013) (
were issued before 2017, they apply the cases and rules of interpretation used in Hamer.
Second,
Finally, although public policy considerations do not hold much weight in statutory construction endeavors, public policy guides us toward a result which is
2172693, at *7-8 (noting that the time-value of money and the depreciation of assets are benefitted by the quick appeals deadlines and the ability to make future financial decisions based on the finality of court determinations).
In sum, applying the bright line rule for transfer of adjudicatory authority between Article III courts articulated by the Supreme Court in Hamer-statutory deadlines are jurisdictional, non-statutory deadlines are not-suggests that the 14-day time deadline specified in
C. Excusable Neglect
In her December 4, 2017, response to the Panel‘s notice regarding the timeliness of this appeal, Ms. Wilkins sought an extension of time to appeal pursuant to
entry of the order being appealed) if the party shows excusable neglect.
Ms. Wilkins’ request was made 42 days after entry of the last orders she is seeking to appeal, beyond the deadline established by
IV. CONCLUSION
For the reasons discussed above, we DISMISS Ms. Wilkins’ untimely filed appeals in BAP Nos. CC-17-1335, CC-17-1337, and CC-17-1346 for lack of jurisdiction.
KURTZ, Bankruptcy Judge