Banner Bank v. Robertson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 29, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
In re: MICHAEL LYNN ROBERTSON,

Debtor.

BANNER BANK, formerly doing business
in Utah as AmericanWest Bank or Far
West Bank,

Plaintiff - Appellee,
No. 18-4060
v. (BAP No. 17-034-UT)
(Bankruptcy Appellate Panel)
MICHAEL LYNN ROBERTSON,

Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________

The United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP)

dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of

jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filed

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did

not toll the time limit for filing his notice of appeal from the bankruptcy court’s

underlying judgment. Accordingly, the BAP concluded that his notice of appeal was

untimely and that the BAP lacked jurisdiction. Exercising jurisdiction under

28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 9023 motion was

untimely and reaffirm Tenth Circuit precedent that the time to file a notice of appeal

from a bankruptcy court is jurisdictional. We also hold that an untimely Rule 9023

motion is ineffective to toll the time for filing a notice of appeal and that the BAP

may raise the timeliness of a Rule 9023 motion sua sponte. We deny without

prejudice appellee’s request for attorney fees.

I. Overview of legal framework

The issues in this appeal turn primarily on one statute and several rules of

bankruptcy procedure governing the time to file a notice of appeal from a bankruptcy

court. We therefore set out the relevant legal framework before turning to the facts

and procedural background of this case.

In 28 U.S.C. § 158(c)(2), Congress included a timeliness condition for taking

appeals from bankruptcy court decisions: “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.” § 158(c)(2) (emphasis added). In

turn, Bankruptcy Rule 8002(a)(1) states: “Except as provided in subdivisions (b) and

(c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after

2
entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P.

8002(a)(1). An exception in subdivision (b) is relevant here and provides that Rule

8002(a)(1)’s 14-day time period for filing a notice of appeal can be extended when

certain motions, including a Rule 9023 motion, are timely filed:

If a party files in the bankruptcy court any of the following motions and
does so within the time allowed by these rules, the time to file an appeal
runs for all parties from the entry of the order disposing of the last such
remaining motion: . . . (B) to alter or amend the judgment under Rule
9023[.]
Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And Bankruptcy Rule 9023

requires that “[a] motion for a new trial or to alter or amend a judgment shall be filed

. . . no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023.

With this framework in mind, we turn to the factual and procedural

background of this case.

II. Factual and procedural background

Through counsel, Mr. Robertson filed a Chapter 7 bankruptcy petition. Banner

Bank (Bank) initiated an adversary proceeding seeking to except from discharge a

deficiency judgment it had obtained against Mr. Robertson in Utah state court. After

Mr. Robertson’s counsel withdrew, Mr. Robertson proceeded pro se, and the parties

filed cross-motions for summary judgment. On March 30, 2017, the bankruptcy

court entered an order and judgment granting the Bank’s motion and denying

Mr. Robertson’s motion. Fourteen days later, on April 13, 2017, Mr. Robertson

mailed a Rule 9023 motion to the bankruptcy court, asking the court to reconsider,

alter, or amend the judgment. The motion was entered on the bankruptcy court’s

3
docket on April 14, 2017, which was 15 days after the judgment. The parties fully

briefed the motion, and the Bank never complained that the motion was untimely.

The bankruptcy court denied the motion on the merits, never mentioning whether the

motion was timely.

On July 14, 2017, 14 days after the bankruptcy court disposed of the

Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of

appeal designated only the bankruptcy court’s March 30, 2017 order and judgment as

the subject of the appeal. After the parties completed merits briefing—where the

Bank did not dispute that the BAP had jurisdiction over the appeal—the BAP issued

an order to show cause why the appeal should not be dismissed for lack of

jurisdiction because the notice of appeal appeared untimely.

After considering the parties’ responses to the show-cause order, the BAP

determined that the notice of appeal was untimely. The BAP concluded that because

Mr. Robertson’s Rule 9023 motion was filed 15 days after entry of judgment, it was

untimely and therefore did not toll the running of Rule 8002(a)(1)’s 14-day appeal

period, which the BAP treated as jurisdictional. In reaching its conclusions, the BAP

rejected Mr. Robertson’s argument that mailing the Rule 9023 motion on the

fourteenth day after entry of the judgment was sufficient to render the motion timely

filed, which the BAP said occurs when “a document [is] received by the clerk,” R.,

Vol. I at 35. The BAP also rejected his argument that by mailing the motion to the

clerk, he had served the clerk, and that service is complete upon mailing. The BAP

reasoned that Rule 9023 requires filing within 14 days, and service is not equivalent

4
to filing. Accordingly, the BAP concluded that his notice of appeal was untimely and

dismissed the appeal for lack of jurisdiction.

Mr. Robertson filed a motion for rehearing or to alter or amend the BAP’s

judgment, arguing that the time to file an appeal with the BAP was not jurisdictional,

that Rule 9023 is a claim-processing rule and the Bank had forfeited any objection to

the timeliness of his Rule 9023 motion, and that the BAP should not have considered

the timeliness of that motion sua sponte. The BAP denied the motion for rehearing.

This appeal followed.

III. Discussion

Mr. Robertson raises three issues on appeal, which we address in the following

order: (1) whether a Rule 9023 motion is deemed filed when mailed, so that his

Rule 9023 motion was timely filed; (2) whether this circuit’s law that Rule

8002(a)(1)’s time limit for filing a notice of appeal from a bankruptcy court’s

judgment is jurisdictional remains good after intervening Supreme Court decisions;

and (3) whether Rule 9023’s 14-day timeliness requirement is a claim-processing rule

that the Bank waived, so the untimely Rule 9023 motion was effective in tolling the

appeal period. The third issue has a related concern: whether it was proper for the

BAP to raise the timeliness of the Rule 9023 motion sua sponte as a predicate to

determining its jurisdiction.

The issues on appeal concern matters of law or “mixed questions consisting

primarily of legal conclusions drawn from the facts,” so our review is de novo.

Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir. 1997). We afford

5
a liberal construction to Mr. Robertson’s pro se filings, but we do not act as his

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

A. A Rule 9023 motion is filed when the court receives it

We first address whether Mr. Robertson’s Rule 9023 motion was timely filed.

If it was, then it tolled the appeal period, his notice of appeal to the BAP was timely,

and we would not have to address any other issues in this appeal. We conclude,

however, that the motion was not timely filed.

Mr. Robertson argues that his motion should be treated as filed on April 13,

2017, the fourteenth day after entry of judgment, because he placed it in the United

States mail that day, postage prepaid. He contends that the Federal Rules of

Bankruptcy Procedure do not define when “filing” occurs, but he advocates for

defining that moment by reference to Supreme Court Rule 29.2, which allows the

date of filing to be the date of mailing provided certain requirements are satisfied.1

We disagree with Mr. Robertson’s premise that no federal bankruptcy rule

defines when filing occurs. Therefore, we need not consider whether Supreme Court

Rule 29.2 should apply. As noted, a Rule 9023 motion must be “filed . . . no later

than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023 (emphasis added). In

adversary proceedings, such as we have here, the filing of papers is governed by

1
In relevant part, Supreme Court Rule 29.2 provides: “A document is timely
filed if it is received by the Clerk within the time specified for filing; or if it is sent to
the Clerk through the United States Postal Service by first-class mail (including
express or priority mail), postage prepaid, and bears a postmark, other than a
commercial postage meter label, showing that the document was mailed on or before
the last day for filing . . . .”
6
Federal Rule of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (“Rule 5 F.R.Civ.P.

applies in adversary proceedings.”). And under Civil Rule 5, “[a] paper not filed

electronically”—like Mr. Robertson’s Rule 9023 motion—“is filed by delivering it

. . . to the clerk” or “to a judge who agrees to accept it for filing.” Fed. R. Civ.

P. 5(d)(2) (emphasis added). Delivery, and hence filing, requires receipt by the clerk

or a judge. See United States v. Lombardo, 241 U.S. 73, 76 (1916) (“Filing, it must

be observed, is not complete until the document is delivered and received.”); In re

Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974) (“[M]ailing alone does not

constitute filing[.] . . . [F]iling requires delivery and receipt by the proper party.”

(citations omitted)); Kahler-Ellis Co. v. Ohio Tpk. Comm’n, 225 F.2d 922, 922

(6th Cir. 1955) (depositing a document in the mail “is not a filing; only when the

clerk acquires custody has [a document] been filed” (citations omitted)).

Mr. Robertson does not argue that the clerk or a judge received his Rule 9023

motion on April 13, 2017, but only that he mailed it on that date. Consequently, the

motion was untimely.2

2
The Bank has not cited Rule 7005 or its incorporation of Civil Rule 5, and
the BAP approached this issue by analyzing the meaning of the word “filed” in
Federal Rule of Bankruptcy Procedure 5005(a)(1), which provides that “motions . . .
required to be filed by these rules, except as provided in 28 U.S.C. § 1409
[concerning venue in Chapter 11 proceedings], shall be filed with the clerk in the
district where the case under the Code is pending.” Even if Bankruptcy Rule 5005
controls, we would reach the same conclusion—that mailing is not equivalent to
filing.
7
 B. Rule 8002(a)(1)’s time limit is jurisdictional

We next consider Mr. Robertson’s argument that Rule 8002(a)(1)’s 14-day

time limit for filing a notice of appeal from a bankruptcy court’s ruling is not

jurisdictional but a claim-processing rule. The distinction matters because if a time

limit for filing a notice of appeal is “jurisdictional,” then “late filing of the appeal

notice necessitates dismissal of the appeal”; but if it is “a mandatory

claim-processing rule,” it is “subject to forfeiture if not properly raised by the

[opposing party].” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13,

16 (2017). For the following reasons, we reject Mr. Robertson’s argument.

We considered Rule 8002(a) in Deyhimy v. Rupp (In re Herwit), 970 F.2d 709,

710 (10th Cir. 1992), holding that the “failure to file a timely notice of appeal [is] a

jurisdictional defect barring appellate review.” In Emann v. Latture (In re Latture),

605 F.3d 830 (10th Cir. 2010), we reaffirmed our holding in In re Herwit after

considering the Supreme Court’s intervening jurisprudence concerning the distinction

between time limits that are non-waivable jurisdictional requirements and those that

are waivable claim-processing rules. See id. at 832–37.3 Consistent with that

intervening jurisprudence, we considered whether Congress had “‘rank[ed] [the]

statutory limitation . . . as jurisdictional,’” id. at 834 (quoting Arbaugh v. Y & H

Corp., 546 U.S. 500, 516 (2006)), and the “‘context, including [the Supreme] Court’s

3
Just prior to our decision in In re Latture, the BAP conducted a similar
analysis and reached the same conclusion that Rule 8002(a)(1) is jurisdictional. See
Hatch Jacobs, LLC v. Kingsley Capital, Inc. (In re Kingsley Capital, Inc.), 423 B.R.
344, 347–51 (B.A.P. 10th Cir. 2010).
8
interpretation of similar provisions in many years past,’” to determine whether

Rule 8002(a)(1)’s 14-day time limit is “‘jurisdictional,’” id. at 835 (quoting Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010)). We discussed several factors

indicating that Rule 8002(a)(1)’s 14-day time limit is a jurisdictional time

prescription, not a waivable or forfeitable claim-processing rule:

First, we noted that in 28 U.S.C. § 158(c)(2), Congress had “explicitly

included a timeliness condition” for taking appeals—“that a notice of appeal be filed

within the time provided by Rule 8002(a).” In re Latture, 605 F.3d at 837.

Second, we noted that this “timeliness requirement . . . is located in the same

section granting the district courts and bankruptcy appellate panels jurisdiction to

hear appeals from bankruptcy courts—Section 158(a)-(b).” Id.

And third, we observed that in Bowles v. Russell, 551 U.S. 205 (2007), the

Supreme Court had noted that “time limits for filing a notice of appeal have been

treated as jurisdictional in American law for well over a century.” Id. at 210 n.2.

Although Bowles concerned a civil appeal rather than a bankruptcy appeal, we did

not “believe [that] distinction makes a difference” because “the Advisory Committee

Notes accompanying Rule 8002(a) state that the rule is an adaptation” of the same

rule the Court addressed in Bowles, Federal Rule of Appellate Procedure 4(a), In re

Latture, 605 F.3d at 837 (internal quotation marks omitted), and Bowles and Reed

Elsevier instruct that we must “look at the [Supreme] Court’s ‘interpretation of

similar provisions,’” id. (quoting Reed Elsevier, Inc., 559 U.S. at 168). We also

noted that historically, all circuits had treated Rule 8002(a)(1)’s time limit as

9
jurisdictional prior to Kontrick v. Ryan, 540 U.S. 443 (2004), which launched the

Supreme Court’s recent series of decisions analyzing whether time limits and other

conditions in statutes and rules are jurisdictional. In re Latture, 605 F.3d at 837.

Mr. Robertson claims that In re Latture was wrongly decided and should be

overturned (1) because we misapplied the Supreme Court decisions we discussed in

In re Latture and (2) in light of decisions the Supreme Court has issued since In re

Latture that involved or discussed appeals from or to courts that, like bankruptcy

courts and the BAP, are Article I courts, not Article III courts. But this panel is

“bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.” United States v. Meyers,

200 F.3d 715, 720 (10th Cir. 2000) (emphasis added) (internal quotation marks

omitted). Therefore, in determining what is binding precedent from this court, we

will consider only Supreme Court decisions issued after In re Latture that

Mr. Robertson cites in his opening brief and that are substantively relevant to his

“Article I” argument.4 We discern two such cases: Hamer v. Neighborhood Housing

4
In addition to his “Article I” argument, Mr. Robertson suggests that In re
Latture is in tension with Federal Rule of Bankruptcy Procedure 9030. Aplt.
Opening Br. at 10–11. Rule 9030 reads: “These rules shall not be construed to
extend or limit the jurisdiction of the courts or the venue of any matters therein.” We
rejected this argument in In re Latture, 605 F.3d at 837, holding that § 158(c)(2)
determined the timeliness component of jurisdiction over appeals from bankruptcy
courts “by incorporating the time limits prescribed in Rule 8002(a).” None of the
later Supreme Court decisions Mr. Robertson cites in his opening brief bear on that
conclusion. Accordingly, this panel will not reconsider the point. Meyers, 200 F.3d
at 720.

10
Services of Chicago, 138 S. Ct. 13 (2017), and Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428 (2011) (Henderson).5 Neither one requires us to overturn In

re Latture.

In Hamer, the Supreme Court held that Federal Rule of Appellate Procedure

4(a)(5)(C)’s 30-day time limit on the length of an extension of time to file a notice of

appeal in a civil case is a nonjurisdictional claim-processing rule. 138 S. Ct. at 21.

Facially, that holding has no application here. But Mr. Robertson directs our

attention to the following statement in Hamer: “The rule of decision our precedent

shapes 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[.]” Id. at 20 (emphasis added) (citation omitted). Mr. Robertson

claims the reference to an “Article III court” means that only timeliness prescriptions

concerning “appeals from one Article III court to another are jurisdictional,” Aplt.

5
In his opening brief, Mr. Robertson also relies on Sebelius v. Auburn
Regional Medical Center, 568 U.S. 145 (2013), in support of his “Article I”
argument. The time limits at issue in Sebelius, however, did not involve any federal
courts but the time to appeal from a Medicare reimbursement determination by
“[g]overnment contractors, called fiscal intermediaries, . . . to an administrative body
named the Provider Reimbursement Review Board.” Id. at 821. Sebelius is therefore
not germane to Mr. Robertson’s “Article I” argument. Consequently, we will discuss
it no further. In his reply brief, Mr. Robertson relies on another recent case, Patchak
v. Zinke, 138 S. Ct. 897 (2018), in support of his “Article I” argument. But that
reliance comes too late. Patchak was decided before Mr. Robertson filed his opening
brief, but he waited until his reply brief to cite it. We ordinarily do not consider
matters raised for the first time in a reply brief, including arguments that might
support a court’s jurisdiction. McKenzie v. U.S. Citizenship and Immigration Servs.,
761 F.3d 1149, 1154–55 (10th Cir. 2014). We decline to do so here.
11
Opening Br. at 14, and therefore “appeals from Article I Bankruptcy courts fit into

the claim processing category,” id. at 11. He posits that Rule 8002(a)(1) sets the time

limit to appeal from one Article I court (a federal bankruptcy court) to another (the

BAP) and is therefore nonjurisdictional under Hamer.

We disagree. Nothing in Hamer indicates that the Court’s analysis turned on

the constitutional basis for a federal court’s jurisdiction. Instead, the Court’s

rationale was that the 30-day time limit, which purported to apply “in all

circumstances,” was set forth only in Appellate Rule 4(a)(5)(C), whereas the relevant

statute, 28 U.S.C. § 2107(c), set a shorter time limit (14 days) on the length of an

extension only in cases where “the prospective appellant lacked notice of the entry of

judgment.” Hamer, 138 S. Ct. at 19 (emphasis omitted). Nor does Hamer stand for

the proposition that a timeliness prescription for taking an appeal from or to an

Article I court is per se a claim-processing rule. To the contrary, Hamer cited

examples of “cases not involving the timebound transfer of adjudicatory authority

from one Article III court to another” where the Court had “additionally applied a

clear-statement rule.” Id. at 20 n.9. The Court then explained that the rule requires

consideration of “context” and the “Court’s interpretations of similar provisions in

many years past” when determining if Congress provided a clear statement that a

particular provision was intended to be jurisdictional. Id. (internal quotation marks

omitted). That explanation confirms In re Latture’s analytical course, which

included consideration of context and precedent in determining whether Congress has

“rank[ed]” a time limit as jurisdictional. In re Latture, 605 F.3d at 834.

12
 For these reasons, nothing in Hamer causes us to question the analysis or

result in In re Latture on the basis that time limits for filing notices of appeal from or

to Article I courts are nonjurisdictional claim-processing rules. Other courts have

agreed. See Wilkins v. Menchaca (In re Wilkins), 587 B.R. 97, 105 (B.A.P. 9th Cir.

2018) (“[T]here is nothing in Hamer that gives us a reason to reexamine the Ninth

Circuit’s longstanding construction of the time deadline in Rule 8002(a)” as

jurisdictional.); In re Jackson, 585 B.R. 410, 412, 415–16, 420–21 (B.A.P. 6th Cir.

2018) (considering Hamer and concluding that § 158(c)(2)’s time requirement, as

implemented by Rule 8002(a)(1), is jurisdictional).

Henderson is even further afield than Hamer. In Henderson, the Supreme

Court held that a statutory 120-day deadline for filing a notice of appeal from a

decision by the Board of Veterans’ Appeals to the United States Court of Appeals for

Veterans Claims was not jurisdictional. 562 U.S. at 431. After noting that none of

its precedents, including Bowles, controlled the outcome because the case involved

“review by an Article I tribunal as part of a unique administrative scheme,” the Court

considered several factors bearing on congressional intent. Id. at 437–38. And it was

those factors—not the Article I nature of the reviewing court—that informed the

result. For our purposes, the most significant of those other factors are (1) the

absence of jurisdictional terms in the statute at issue and (2) the numerous differences

between “ordinary civil litigation” that “provided the context of [the Court’s]

decision in Bowles,” and the “informal and nonadversarial” nature of “the system

Congress that created for the adjudication of veterans’ benefits claims,” id. at 440.

13
 In contrast, § 158(c)(2) does speak in jurisdictional terms, as discussed in In re

Latture, 605 F.3d at 837. Furthermore, § 158(c)(2) directs that appeals from

bankruptcy courts “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.” The Henderson Court found that similar statutory language

clearly signals an intent that a time limit should be treated as jurisdictional. 562 U.S.

at 438–39.6 And bankruptcy proceedings have much more in common with

adversarial civil litigation than with the nonadversarial scheme discussed in

Henderson. See Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015) (“A

bankruptcy case involves an aggregation of individual controversies, many of which

would exist as stand-alone lawsuits but for the bankrupt status of the debtor.”

(internal quotation marks omitted)); In re Grasso, 519 B.R. 137, 140 (Bankr. E.D. Pa.

2014) (“The adversarial nature of bankruptcy proceedings presumes the participation

of creditors will be driven by their self-interest and not the expectation of

6
Mr. Robertson claims the word “generally” in § 158(c)(2), read in
conjunction with 28 U.S.C. § 2107(d)’s statement that § 2107, which sets the time for
taking appeals in civil proceedings, “shall not apply to bankruptcy matters or other
proceedings under Title 11,” indicates that Congress was delegating to the Supreme
Court the authority to set how and when appeals are taken from bankruptcy courts.
In further support, he notes that in 2009, the Supreme Court, which promulgates the
Federal Rules of Bankruptcy Procedure, extended Rule 8002(a)’s original 10-day
limit to 14 days. But this argument does not depend on or derive solely from any
Supreme Court decision issued after In re Latture; Mr. Robertson cites only
Henderson and only for its definition of claim-processing rules. See Aplt. Opening
Br. at 9. So even if this were a meritorious argument (and we expressly disavow any
suggestion that it is), it could not serve as a basis for overturning In re Latture absent
en banc reconsideration or a superseding Supreme Court decision. Meyers, 200 F.3d
at 720. We therefore decline to discuss it further.
14
payment.”); see also Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 457

(2004) (Scalia, J., dissenting) (“The similarities between adversary proceedings in

bankruptcy and federal civil litigation are striking.”).

In sum, neither Hamer nor Henderson causes us to question the analysis or

result in In re Latture. We therefore reject Mr. Robertson’s invitation to overturn In

re Latture and instead reaffirm that Rule 8002(a)(1)’s time limit is jurisdictional.

C. Late-filed Rule 9023 motion did not toll the appeal period

As noted, Bankruptcy Rule 8002(b)(1) extends or tolls Rule 8002(a)(1)’s

14-day time period for filing a notice of appeal when certain motions, including a

Rule 9023 motion, are timely filed, and a Rule 9023 motion must be filed “no later

than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. Mr. Robertson argues

that Rule 9023’s time limit is a claim-processing rule and therefore subject to waiver

and forfeiture. He notes that the Bank did not contest whether his Rule 9023 motion

was timely, either in the bankruptcy court or in merits briefing before the BAP, and

that the bankruptcy court denied it on the merits. He further argues that while the

bankruptcy court was entertaining the motion, there was no final judgment to appeal.

Therefore, he posits, it was error for the BAP to consider timeliness of the Rule 9023

motion sua sponte and dismiss his appeal for lack of jurisdiction.

The Bank does not argue that Rule 9023’s time limit is jurisdictional but urges

that an untimely Rule 9023 motion cannot toll the time to file a notice of appeal even

if the opposing party does not raise a timeliness objection to the bankruptcy court’s

consideration of the motion, and even if the bankruptcy court disposes of the motion

15
on the merits. For reasons that follow, we conclude that Rule 9023’s time limit is a

claim-processing rule, but an untimely Rule 9023 motion is ineffective to toll the

time to appeal under Rule 8002(b)(1)(B) even if an opposing party does not object

and the bankruptcy court disposes of it on the merits, and the BAP can, sua sponte,

raise the timeliness of a Rule 9023 motion for purposes of determining its

jurisdiction.

1. Rule 9023’s time limit is a claim-processing rule

Rule 9023’s time limit appears to be a claim-processing rule; the Bank has not

suggested it has any statutory basis, and we are aware of none. See United States v.

Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (explaining that “Bowles . . . clarified

that court-issued federal procedural rules not derived from statutes are not

jurisdictional, but rather inflexible claim-processing rules”). But the parties have not

cited any judicial decision directly on point, and the only case we have uncovered is

Dixon-Ross v. Hartwell (In re Dixon-Ross), No. 14-18608, 2016 WL 1056776, at *2–

3 (E.D. Pa. Mar. 17, 2016) (unpublished), where the court compared Rule 9023 to

Federal Rule of Civil Procedure 59(e) and held that the debtor forfeited a defense of

untimeliness to the bankruptcy court’s consideration of an untimely Rule 9023

motion by not raising that defense in a timely manner. We agree.

Analogizing from Rule 59(e) is proper because (1) Rule 9023 expressly states

that, subject to exceptions not relevant here, “Rule 59 . . . applies in cases under the

[Bankruptcy] Code,” Fed. R. Bankr. P. 9023; and (2) like Rule 9023, Rule 59(e)

16
concerns the time limit (28 days) for filing a motion to alter or amend a judgment.7

And all circuits that have considered the nature of Rule 59(e) in the wake of

Kontrick, Eberhart, and Bowles have held that it is a claim-processing rule because it

is untethered to any jurisdictional statute. See Suber v. Lowes Home Ctrs., Inc.,

609 F. App’x 615, 616 (11th Cir. 2015) (per curiam) (“Th[e] time limit for filing a

Rule 59(e) motion is a claims-processing rule, not a jurisdictional rule, because it is

not grounded in a statutory requirement.” (internal quotation marks omitted)); Blue v.

Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 584 (7th Cir. 2012)

(concluding that Rule 59(e) is a “non-jurisdictional procedural rule[]” because it was

“promulgated by the Supreme Court under the Rules Enabling Act, 28 U.S.C.

§§ 2071–2077, and therefore ‘do[es] not create or withdraw federal jurisdiction’”

(quoting Kontrick, 540 U.S. at 453)); Lizardo v. United States, 619 F.3d 273, 277

(3d Cir. 2010) (same); Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 475

(6th Cir. 2007) (same); First Ave. W. Bldg., LLC v. James (In re Onecast Media,

Inc.), 439 F.3d 558, 562 (9th Cir. 2006) (concluding that “Rule 59 is . . . a

claim-processing rule”); cf. Wilburn v. Robinson, 480 F.3d 1140, 1146 n.11 (D.C.

7
The exceptions in Rule 9023 are found in (1) the rule itself, which provides
that, in contrast to Rule 59(e)’s 28-day time limit, a Rule 9023 motion must be filed
“no later than 14 days after entry of judgment,” Fed. R. Bankr. P. 9023; and
(2) Bankruptcy Rule 3008, which concerns motions for “reconsideration of an order
allowing or disallowing a claim against the estate,” Fed. R. Bankr. P. 3008. Neither
exception is relevant to whether we may analogize from case law regarding Civil
Rule 59(e) to determine if Rule 9023’s time limit is jurisdictional.

17
Cir. 2007) (rejecting dissent’s argument that Rule 60(b) is jurisdictional because

parallel Rule 59(e) is jurisdictional).8

The reasoning of In re Dixon-Ross and our sister circuits with respect to Civil

Rule 59(e) persuades us that Rule 9023 is a claim-processing rule, and a party can

waive or forfeit a timeliness objection to the bankruptcy court’s consideration of a

Rule 9023 motion filed more than 14 days after entry of judgment. In this case, the

Bank forfeited such an objection. But this does not resolve the more difficult

question: Whether either an opposing party’s waiver or forfeiture of an untimeliness

8
In Watson v. Ward, 404 F.3d 1230, 1231 (10th Cir. 2005), this court granted
a certificate of appealability on “[w]hether the district court had jurisdiction to grant
Respondent’s Rule 59 motion to alter or amend judgment,” which had been filed well
after what was then a 10-day time limit. We observed that “[w]ith admirable candor,
Respondents concede that the district court lacked jurisdiction.” Id. We then
rejected an invitation to uphold the district court’s ruling on the motion by treating it
as if it was entered pursuant to Rule 60(b). Id. at 1232. But we provided little
analysis of the jurisdictional issue, instead relying on (1) the appellees’ concession
that the district court lacked jurisdiction over an untimely Rule 59(e) motion, and
(2) Brock v. Citizens Bank of Clovis, 841 F.2d 344 (10th Cir. 1988), which predated
Kontrick and stated in summary fashion that a district court had “correctly denied
relief on jurisdictional grounds” when it denied a Rule 59(e) motion as untimely, id.
at 347–48. See Watson, 404 F.3d at 1231. And although Watson post-dates
Kontrick, which acknowledged the distinction between jurisdictional and
claim-processing provisions, it did not discuss Kontrick. Further, two panels of this
court and one panel of the Tenth Circuit BAP have cited Watson in noting we have
not yet decided if Rule 59(e) is jurisdictional or a claim-processing rule in light of
Kontrick and its progeny. See Martinez v. Carson, 697 F.3d 1252, 1258 n.1
(10th Cir. 2012); Sky Harbor Air Serv., Inc. v. Reams, 491 F. App’x 875, 891 n.17
(10th Cir. 2012); Onyeabor v. Centennial Pointe Prop. Owners’ Assoc. (In re
Onyeabor), BAP No. UT-14-047, 2015 WL 1726692, at *6 n.60 (B.A.P. 10th Cir.
Apr. 15, 2015). None of those three cases decided the issue either. We therefore
decline to base our analysis of Rule 9023 on Watson’s suggestion that a district court
lacks jurisdiction to grant an untimely Rule 59 motion.

18
argument in the bankruptcy court, or the bankruptcy court’s denial of a Rule 9023

motion on the merits, rather than for untimeliness, means the untimely Rule 9023

motion can, under Rule 8002(b)(1)(B), toll the appeal period and hence render timely

an otherwise untimely notice of appeal. We now turn to that question.

2. An untimely Rule 9023 motion does not toll the appeal period

The parties cite no judicial decision resolving whether an untimely Rule 9023

motion can, under Rule 8002(b)(1)(B), toll the time period in which to file a notice of

appeal to the BAP or a district court, and we have found none.9 We therefore must

resort to analogous tolling rules.

a. Analogous tolling rules

Two procedural rules serve as proper analogues: Federal Rules of Appellate

Procedure 4(a)(4)(A) and 6(b)(2)(A)(i).

Rule 4(a)(4)(A) provides for tolling the jurisdictional time limit for filing a

notice of appeal from a district court to a circuit court found in 28 U.S.C. § 2107: “If

a party files in the district court any of the following motions under the Federal Rules

of Civil Procedure—and does so within the time allowed by those rules—the time to

file an appeal runs for all parties from the entry of the order disposing of the last such

remaining motion.” Rule 59(e) motions are among the tolling motions listed in

9
Although In re Dixon-Ross held that a court has appellate “jurisdiction to
review a timely appealed order disposing of an untimely motion for reconsideration,”
2016 WL 1056776, at *3 (internal quotation marks omitted), there is no indication
that the notice of appeal in that case was untimely and no mention of
Rule 8002(b)(1)(B).
19
Rule 4(a)(4)(A), see Fed. R. App. P. 4(a)(4)(A)(iv), and those “must be filed no later

than 28 days after the entry of the judgment,” Fed. R. Civ. P. 59(e). As an Advisory

Committee’s note states, Rule 8002 “is an adaptation of [Appellate] Rule 4(a),” and

Rule 8002(b) “is essentially the same as [Appellate] Rule 4(a)(4).” Fed. R. Bankr.

P. 8002 advisory committee’s note.

Similarly, Appellate Rule 6(b)(2)(A)(i) provides for tolling the jurisdictional

time limit to file a notice of appeal to a circuit court from a decision by a BAP or a

district court exercising appellate jurisdiction in a bankruptcy case:10 “If a timely

motion for rehearing under Bankruptcy Rule 8022 is filed, the time to appeal for all

parties runs from the entry of the order disposing of the motion.” Fed. R. App.

P. 6(b)(2)(A)(i). Similar to time limits found in Civil Rule 59(e) and Bankruptcy

Rule 9023, Bankruptcy Rule 8022(a)(1) has a time limit (14 days) for filing a motion

for rehearing before a BAP or district court sitting in its appellate capacity, and

Rule 8022(a)(1) is a nonjurisdictional claim-processing rule, see Tal v. Harth (In re

Harth), 619 F. App’x 719, 721 (10th Cir. 2015) (recognizing the BAP’s “authority to

overlook the untimeliness of a [Rule 8022] motion for rehearing on equitable

grounds”).11

10
This time limit is jurisdictional. See Taumoepeau v. Mfrs. & Traders Tr.
Co. (In re Taumoepeau), 523 F.3d 1213, 1216 & n.1 (10th Cir. 2008) (jurisdictional
timeliness requirement under § 2107 and Appellate Rule 4(a)(1) is applicable to
bankruptcy appeals to circuit courts by virtue of Appellate Rule 6(b)(1) and Advisory
Committee notes to Bankruptcy Rule 8001).
11
We cite unpublished decisions only for their persuasive value consistent
with 10th Cir. R. 32.1(A).
20
 b. Case law

Having established the relevant analogue rules, we turn to case law

interpreting them. We start with Browder v. Director, Department of Corrections,

where the Supreme Court held that an untimely post-judgment motion filed under

either Civil Rule 52(b) or Rule 59 “could not toll the running of time to appeal under

Rule 4(a)” and therefore the circuit court “lacked jurisdiction to review the

[underlying order granting habeas relief].” 434 U.S. 257, 265 (1978). Before the

district court, the opposing party had objected on timeliness grounds to the court’s

consideration of the motion, but that fact appears to have played no role in the

Supreme Court’s decision. Instead, the Court relied on what Bowles later

confirmed—that § 2107(a)’s 30-day time limit for filing a notice of appeal in a civil

case is “jurisdictional,” id. at 264 (internal quotation marks omitted)—and on

Rule 4(a)(4)(A)’s purpose, which is “to set a definite point of time when litigation

shall be at an end, unless within that time the prescribed application has been made;

and if it has not, to advise prospective appellees that they are freed of the appellant’s

demands,” id. (internal quotation marks omitted).

We next consider Chief Judge Sentelle’s dissenting opinion in Obaydullah v.

Obama, 688 F.3d 784 (D.C. Cir. 2012) (per curiam), and opinions from the First,

Third, Fourth, Fifth, Seventh, and Eleventh Circuits, almost all of which post-date

Bowles and follow Browder. These decisions further develop the rationale for the

rule that untimely post-judgment motions cannot toll the period in which to file a

21
notice of appeal even where an opposing party does not object on timeliness grounds

or the district court disposes of the motion on the merits.

In Obaydullah, the government did not oppose the district court’s

consideration of an untimely Rule 59(e) motion, which the court granted. Were it not

for the tolling effect of that motion, Obaydullah’s notice of appeal would have been

untimely to appeal the underlying judgment. In determining that the untimely motion

tolled the appeal period, the majority relied on circuit precedent to conclude that

Rule 4(a)(4)(A)’s tolling provision for Rule 59(e) motions is a claim-processing rule,

id. at 789, and therefore “the . . . waiver of any timeliness objection” to an untimely

Rule 59(e) motion permits a court to consider an appeal from the underlying

judgment, id. at 791. But in what we consider a persuasive dissent, Chief Judge

Sentelle argued that “Bowles and Browder . . . should govern [the] case,” id. at 800,

pointing out that Bowles (1) “clarified that Browder . . . is good law,” (2) “cited

Browder’s treatment of time limits with approval,” and (3) “explained that [the

Court’s] recent negative treatment of Robinson[12] and other cases, such as Browder,

that relied on Robinson for the proposition that the time limit set for a notice of

appeal is jurisdictional, was ‘dicta,’” id. at 799 (quoting Bowles, 551 U.S. at 210 n.2).

Judge Sentelle also likened allowing an untimely (and unobjected-to) Rule 59(e)

motion to toll a jurisdictional appeal period to the “unique circumstances” doctrine

12
United States v. Robinson, 361 U.S. 220 (1960).
22
the Supreme Court jettisoned in Bowles. See id. at 800 (internal quotation marks

omitted).

We also find the Third Circuit’s decision in Lizardo v. United States, 619 F.3d

273 (3d Cir. 2010), persuasive and instructive. In Lizardo, the government failed to

object to a Rule 59(e) motion as untimely, and the district court denied it. The Third

Circuit held that because Rule 59(e) is a claim-processing rule, the government had

forfeited any timeliness objection it could have made in the district court, but it did

not forfeit its objection for purposes of Rule 4(a)(4)(A). Relying primarily on

Browder, the court held that “[a]n untimely Rule 59(e) motion does not toll the time

for filing an appeal under Rule 4(a)(4)(A). This is true even if the party opposing the

motion did not object to the motion’s untimeliness and the district court considered

the motion on the merits.” Id. at 278. The court reasoned that “Rule 4’s main

purpose is ‘to set a definite point of time when litigation shall be at an end,’” id.

at 279 (quoting Browder, 434 U.S. at 264), and “[h]olding that an untimely

Rule 59(e) motion is timely for purposes of Rule 4(a)(4)(A) by virtue of the opposing

party’s failure to object to that untimeliness in the district court would accomplish

the opposite result,” id. at 280.

In reaching the conclusion that untimely post-judgment motions cannot toll the

period for filing a notice of appeal, the Fifth and Seventh Circuits have followed,

inter alia, Browder and Lizardo. See Overstreet v. Joint Facilities Mgmt., L.L.C.

(In re Crescent Res., L.L.C.), 496 F. App’x 421, 424 (5th Cir. 2012) (per curiam)

(holding that an untimely Rule 59(e) motion “will not toll the notice of appeal period,

23
even if the district court addressed the late-filed motion on the merits”); Blue v. Int’l

Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 582–85 (7th Cir. 2012)

(concluding that, where opposing party had not objected to an impermissible

extension of the deadline to file a post-trial motion, the district court had jurisdiction

to hear those motions but they “did not toll the time [appellant] had to file its Notice

of Appeal”). And in decisions pre-dating Lizardo, the First and Fourth Circuits have

followed Browder. See Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d

6, 8–11 (1st Cir. 2004) (concluding that under Browder, an untimely Rule 59(e)

motion did not toll the appeal period even though the district court had denied it on

the merits); Panhorst v. United States, 241 F.3d 367, 369–70 (4th Cir. 2001) (relying

on Browder to hold that “[a]n untimely Rule 59(e) motion does not defer the time for

filing an appeal, which continues to run from the entry of the initial judgment order,”

where district court had granted motion to consider untimely Rule 59(e) motion then

denied that motion). In another pre-Lizardo case, the Eleventh Circuit also reached

the same conclusion, albeit without reliance on Browder. See Green v. Drug Enf’t

Admin., 606 F.3d 1296, 1302 (11th Cir. 2010) (holding that “Appellate

Rule 4(a)(4)(A) requires [post-judgment] motions be timely to toll the period for

filing a notice of appeal,” and explaining that “[a]lthough Kontrick and Eberhart

suggest that a district court has jurisdiction to hear an out-of-time Rule 59(e) motion

if the non-moving party does not object promptly enough (and thus forfeits his ability

to object to timeliness later), neither case would turn an untimely Rule 59(e) motion

into a timely one” (footnote omitted)).

24
 Finally, we have applied Browder in a bankruptcy case with a procedural

posture analogous to this case. In In re Harth, we concluded that an untimely motion

for rehearing by the BAP filed under Bankruptcy Rule 8022, which the BAP denied

on the merits after noting its untimeliness, did not toll the time limit to appeal to this

court under Appellate Rule 6(b)(2)(A)(i). In support, we relied on Browder,

explaining that although the BAP had “authority to overlook the untimeliness of a

motion for rehearing on equitable grounds, that is a separate matter from whether the

BAP affects our appellate jurisdiction by denying the untimely motion on the merits.”

619 F. App’x at 721 (emphasis added). We said that whether the appellant was

“entitled to tolling of the appeal period is itself a jurisdictional issue,” and under

Bowles, “courts have no authority to create equitable exceptions to jurisdictional

requirements.” Id. (brackets and internal quotation marks omitted). “We therefore

agree[d] with those circuits holding that a lower court’s discretionary election to

deny an untimely post-judgment motion on the merits (an equitable action without

jurisdictional import in that court) does not re-invest that motion with a tolling effect

for purposes of appellate jurisdiction.” Id. We consider In re Harth’s application of

Browder in the bankruptcy context to be persuasive.

The Second, Sixth, Ninth, and D.C. Circuits have concluded that an untimely

post-judgment motion can toll the appeal period under Appellate Rule 4(a)(4)(A).

See Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018) (per curiam); Weitzner

v. Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015); Obaydullah, 688 F.3d at 789;

Nat’l Ecological Found., 496 F.3d at 476. The Eighth Circuit has implied as much.

25
See Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 619 (8th Cir. 2008). However, we

are more persuaded by the contrary view expressed in Browder, Chief Judge

Sentelle’s dissent in Obaydullah, and the other circuit decisions cited above.

Accordingly, we hold that an untimely Rule 9023 motion is ineffective to toll

the time to file a notice of appeal under 28 U.S.C. § 158(c)(2) and Bankruptcy Rule

8002(a) regardless of whether the bankruptcy court disposes of the motion on the

merits or whether an opposing party raises in the bankruptcy court a timeliness

objection to that court’s consideration of the motion. In the latter situation, holding

otherwise would allow an opposing party’s failure to raise a timeliness objection to

expand the jurisdictional appeal period, and that would violate the tenet that “a

court’s subject-matter jurisdiction cannot be expanded to account for the parties’

litigation conduct.” Kontrick, 540 U.S. at 456; see Bowles, 551 U.S. at 213

(explaining that where an “error is one of jurisdictional magnitude, [a litigant] cannot

rely on forfeiture or waiver to excuse his lack of compliance with [a] statute’s time

limitations [for filing a notice of appeal]”).

3. BAP had authority to consider, sua sponte, Rule 9023
motion’s timeliness

Mr. Robertson complains that the BAP should not have considered the

timeliness of his Rule 9023 motion sua sponte. But given our reaffirmance that

Rule 8002(a)(1)’s time limit is jurisdictional, we conclude that the BAP had authority

to consider sua sponte whether Mr. Robertson’s Rule 9023 motion was timely filed

for purposes of determining whether the BAP had jurisdiction over his appeal. See

26
Henderson, 562 U.S. at 434 (“[F]ederal courts have an independent obligation to

ensure that they do not exceed the scope of their jurisdiction, and therefore they must

raise and decide jurisdictional questions that the parties either overlook or elect not to

press.”)

IV. Attorney fees

Included with its appellate brief, the Bank summarily requests “attorneys’ fees

on appeal pursuant to the final orders and judgments made by the Bankruptcy Court,

the Utah State District Court and the Utah Court of Appeals based upon the loan

documents entered into between the Bank and [Mr.] Robertson.” Aplee. Resp.

Br. at 53–54. The statute the Bank cites in support of its request authorizes a court to

award attorney fees to the prevailing party “in a civil action based upon any

promissory note, written contract, or other writing executed after April 28, 1986,

when the provisions of the promissory note, written contract, or other writing allow

at least one party to recover attorney fees.” Utah Code Ann. § 78B-5-826.

We deny the request without prejudice to the Bank filing a proper motion that

complies with applicable procedural rules, including 10th Cir. R. 27 and 39.2, and

that sets out more fully the legal basis for an award for attorney fees. At a minimum,

any such motion should (1) identify the “promissory note[s], written contract[s], or

other writing[s] allow[ing] at least one party to recover attorney fees,” Utah Code

Ann. § 78B-5-826; (2) discuss whether an appeal from a BAP decision regarding an

adversary proceeding is “a civil action” within the meaning of § 78B-5-826 and, if

so, whether excepting from discharge a deficiency judgment in an adversary

27
proceeding means that the adversary proceeding is “based upon” the relevant

“promissory note, written contract, or other writing,” id.; and (3) identify any other

Utah statutory or case law bearing on the Bank’s entitlement to attorney fees in this

appeal, see, e.g., Mgmt. Servs. Corp. v. Dev. Assocs., 617 P.2d 406, 409 (Utah 1980)

(holding “that a provision for payment of attorney’s fees in a contract includes

attorney’s fees incurred by the prevailing party on appeal as well as at trial, if the

action is brought to enforce the contract” (emphasis added)).

V. Conclusion

We affirm the BAP’s judgment dismissing Mr. Robertson’s appeal for lack of

jurisdiction. We deny the Bank’s request for attorney fees on appeal without

prejudice to the Bank filing a proper motion for attorney fees.

Entered for the Court

Jerome A. Holmes
Circuit Judge

28