United States Court of Appeals
For the First Circuit
No. 08-8046
IN RE LINDA LYNN WEAVER, DEBTOR
____________________
LINDA LYNN WEAVER,
Plaintiff, Respondent,
v.
HARMON LAW OFFICES, P.C., ET AL.,
Defendants, Petitioners.
____________________
PETITION FOR LEAVE TO APPEAL FROM THE
BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William C. Hillman, U.S. Bankruptcy Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
David M. Rosen, Harmon Law Offices, P.C., and Walter Oney on
response to order to show cause and petition for leave to appeal.
September 17, 2008
Per Curiam. This is an attempted appeal from a
bankruptcy court decision under 28 U.S.C. § 158(d)(2), added by
section 1233(a)(2)(B) of 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. See 28 U.S.C.
§ 158(d)(2)(A). This is the first such attempted appeal to this
court.
After the bankruptcy court transmitted its certification
of the appeal to this court, we issued an order to show cause why
the appeal should not be dismissed because (1) no timely notice of
appeal was filed, as required by Interim Bankruptcy Rule
8001(f)(1), adopted by the Bankruptcy Court for the District of
Massachusetts by Standing Order dated October 11, 2005, and (2) no
authorization of the direct appeal was sought or obtained from this
court, as required by 28 U.S.C. § 158(d)(2)(A). In their response
to that order, the defendants conceded that no notice of appeal had
been filed in the bankruptcy court1 and that no petition for
1
The defendants ask that the bankruptcy court's certification
be deemed the functional equivalent of a notice of appeal.
However, because certification of a direct appeal under section
158(d)(2) does not become effective until a timely appeal has been
taken to the bankruptcy appellate panel under sections 158(b) and
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authorization to appeal had been filed in this court but asked that
the direct appeal be authorized despite those procedural missteps.
The answer to the question posed in the show-cause order
depends in the first instance on whether the procedural
requirements referenced in that order are deemed to be
jurisdictional or, rather, mere claims-processing rules. See
Bowles v. Russell, 127 S. Ct. 2360, 2364-66 (2007). Under Bowles,
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. Id. That question has not yet been decided by this
or any other court of appeals, and the answer is not free from
doubt.
Without resolving that jurisdictional question, we
exercise our discretion under section 158(d)(2)(A) to deny leave to
appeal. The existence of this serious jurisdictional question, and
the substantial possibility that jurisdiction would ultimately be
found lacking, means that allowing the appeal to proceed may not
serve the purposes of section 158(d)(2), i.e., a rapid and
definitive resolution of the underlying legal question by this
court. See Weber v. United States Trustee, 484 F.3d 154, 158, 159
(2d Cir. 2007) (citing legislative history to that effect).
(c), BAPCPA, § 1233(b)(4)(A); Interim Bankr. R. 8001(f), the
certification itself cannot serve as a notice of appeal.
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Rather, if, as the bankruptcy court found in certifying this
appeal, there are hundreds of cases pending in the Bankruptcy Court
for the District of Massachusetts raising the same issue certified
here, it would be preferable to resolve that issue in a case not
raising the potentially fatal procedural problems presented here.
To avoid such problems in future cases, litigants,
bankruptcy courts, and bankruptcy appellate panels should be
careful to follow the procedures set forth in section 158 itself
and in the applicable rules. Those rules appear in uncodified
section 1233(b) of the BAPCPA, Interim Bankruptcy Rule 8001(f)
(adopted by standing order by all bankruptcy courts in this
circuit), and Proposed Rule 8001(f) of the Federal Rules of
Bankruptcy Procedure, which will become effective on December 1,
2008, barring any contrary action by Congress in the meantime.
The petition is denied, and the appeal is terminated.
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