Case: 15-40435 Document: 00513204983 Page: 1 Date Filed: 09/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
September 23, 2015
No. 15-40435 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of: ASARCO, L.L.C., Et Al,
Debtor
--------------------------------
AUTRY EARL BARNEY,
Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CV-58
Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Pro se Appellant Autry Earl Barney appeals the district court’s order
dismissing his appeal from the bankruptcy court. Because the district court
correctly concluded that Barney’s notice of appeal was not timely filed, the
district court lacked jurisdiction to hear the appeal. Accordingly, we AFFIRM
the order dismissing the appeal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-40435 Document: 00513204983 Page: 2 Date Filed: 09/23/2015
No. 15-40435
I. FACTUAL AND PROCEDURAL BACKGROUND
Autry Earl Barney’s pro se appeal arises from the bankruptcy
proceedings of ASARCO, L.L.C. Barney reports that he alleged that ASARCO
exposed him to asbestos and that he is currently suffering from asbestosis and
other physical disorders as a result of this exposure. He further reports that
he sought $150,000 in damages from ASARCO as compensation. On January
15, 2015, Barney filed a notice of appeal with the United States District Court
for the Southern District of Texas. While Barney was ostensibly appealing an
order of the bankruptcy court, he did not identify which order he was
appealing, and no entry on the bankruptcy court’s docket sheet in the two
months prior to January 15, 2015, mentions Barney.
On March 4, 2015, the district court dismissed Barney’s appeal under
the Federal Rules of Bankruptcy Procedure. The court explained that the
notice of appeal was filed more than fourteen days after the entry of any order
by the bankruptcy court and was thus filed outside the time period allowed by
Rule 8002(a)(1). The district court also held that dismissal was proper because
Barney failed to comply with three other requirements specified in the Federal
Rules of Bankruptcy Procedure. Barney filed a motion for reconsideration on
March 19, 2015, and the district court denied that motion on March 25, 2015,
for the same reasons that it originally dismissed Barney’s case. Barney timely
appealed from the order on the motion for reconsideration on April 1, 2015.
II. STANDARD OF REVIEW
Although it was not stated explicitly by the district court, Barney’s
failure to comply with the time limit in Rule 8002(a)(1) deprived the district
court of jurisdiction to hear the appeal. In re Berman-Smith, 737 F.3d 997,
1003 (5th Cir. 2013) (holding that a district court may not hear an appeal from
a bankruptcy court if the notice of appeal was not filed within the time limit
set by Rule 8002(a)). “Federal courts must be assured of their subject matter
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jurisdiction at all times and may question it sua sponte at any stage of judicial
proceedings.” In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999). We review de
novo whether a district court had jurisdiction to hear an appeal from a
bankruptcy court. Id. “Jurisdiction may not be waived, and federal appellate
courts have a special obligation to consider not only their own jurisdiction, but
also that of the lower courts.” In re Berman-Smith, 737 F.3d at 1000.
III. DISCUSSION
Rule 8002(a)(1) requires that a “notice of appeal must be filed with the
bankruptcy clerk within 14 days after entry of the judgment, order, or decree
being appealed.” Fed. R. Bankr. P. 8002(a)(1). The Supreme Court explained
in Kontrick v. Ryan, 540 U.S. 443, 452–56 (2004), that time limits contained in
procedural rules adopted by courts, rather than by Congress, are not
jurisdictional. In Bowles v. Russell, 551 U.S. 205, 213 (2007), the Court
clarified that time limits included in statutes are jurisdictional because
Congress can determine “when, and under what conditions, federal courts can
hear [cases].” Id. Based on these decisions, we held in In re Berman-Smith,
737 F.3d at 1003, that “[s]ince the statute defining jurisdiction over bankruptcy
appeals, 28 U.S.C. § 158, expressly requires that the notice of appeal be filed
under the time limit provided in Rule 8002 . . . the time limit is jurisdictional.”
Id.
In this case, Barney filed a notice of appeal on January 15, 2015, but
prior to that date, the bankruptcy court had entered no orders, judgments, or
decrees, in the preceding fourteen days. Thus, Barney’s notice of appeal was
untimely, and the district court properly dismissed the appeal under Rule
8002(a)(1). Because we find that the district court properly dismissed the case
for lack of jurisdiction, we need not consider the other reasons given by the
court for dismissal. However, we note that, assuming the district court had
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jurisdiction, we find no error in the district court’s additional reasons for
dismissing Barney’s case under the Federal Rules of Bankruptcy Procedure.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED. Barney’s motion to proceed in forma pauperis is DENIED.
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