Cite as: Keith M. Lundin, Lundin On Chapter 13, § 117.5, at ¶ ____, LundinOnChapter13.com (last visited __________).
BAPCPA created a new avenue for appeal in bankruptcy cases: direct appeals to courts of appeals. Under pre-BAPCPA law, an appeal from the grant or denial of confirmation in a Chapter 13 case was heard either by the district court or by a bankruptcy appellate panel.1 Citing “time and cost factors” and that decisions by a district court or bankruptcy appellate panel are “generally not binding and lack stare decisis value,”2 Congress amended 28 U.S.C. § 158(d) to establish the following procedure for direct appeals to the courts of appeals in bankruptcy matters:
(d)(2)(A) The appropriate court of appeals shall have jurisdiction of appeals described in [28 U.S.C. § 158(a)] if the bankruptcy court, the district court, or the bankruptcy appellate panel involved, acting on its own motion or on the request of a party to the judgment, order, or decree described in such first sentence, or all the appellants and appellees (if any) acting jointly, certify that—
(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public importance;
(ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or
(iii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case or proceeding in which the appeal is taken; and if the court of appeals authorizes the direct appeal of the judgment, order, or decree.
(B) If the bankruptcy court, the district court, or the bankruptcy appellate panel—
(i) on its own motion or on the request of a party, determines that a circumstance specified in clause (i), (ii), or (iii) of subparagraph (A) exists; or
(ii) receives a request made by a majority of the appellants and a majority of the appellees (if any) to make the certification described in subparagraph (A); then the bankruptcy court, the district court, or the bankruptcy appellate panel shall make the certification described in subparagraph (A).
(C) The parties may supplement the certification with a short statement of the basis for the certification.
(D) An appeal under this paragraph does not stay any proceeding of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken, unless the respective bankruptcy court, district court, or bankruptcy appellate panel, or the court of appeals in which the appeal is pending, issues a stay of such proceeding pending the appeal.
(E) Any request under subparagraph (B) for certification shall be made not later than 60 days after the entry of the judgment, order, or decree.3
Under the limited circumstances described above, the grant or denial of confirmation in a Chapter 13 case could be appealed directly from the bankruptcy court to the court of appeals. At an intermediate point in the appellate process, the appeal can be accelerated to the court of appeals by following the new procedures.
New § 158(d)(2) establishes a two-step certification process for direct appeals to the court of appeals. The first step is a certification—by all the appellants and appellees, or by the bankruptcy court, the district court or BAP—that controlling precedent is needed at the court of appeals level, that the matter is of public importance, that there is a need to resolve conflicting decisions on a question of law or that an immediate appeal may materially advance the progress of the case or proceeding. This certification is not discretionary if the court determines that one or more of the specified tests has been met or when a majority of the appellants and a majority of the appellees request certification and represent that one or more of the conditions are present.
The second step in the certification process is acceptance by the court of appeals of jurisdiction over the appeal. The statute does not require the court of appeals to accept a direct appeal under any particular circumstances.
The Advisory Committee on Bankruptcy Rules acted quickly to implement new 28 U.S.C. § 158(d). Interim Rule 8001(f) attempts at great length to fit the direct appeal procedure into the existing appellate statutes and rules. The fit is not perfect, and the certification process in Interim Rule 8001(f) is complex. A new Official Form 24 has been drafted to be used for certification to the court of appeals by the parties to bankruptcy matters.
The grant or denial of confirmation in a Chapter 13 case will occasionally fit the circumstances in which certification to a court of appeals is authorized by new 28 U.S.C. § 158(d)(2). The absence of a controlling decision by the court of appeals, the presence of questions of law and the presence of conflicting decisions are relatively commonplace at confirmation in Chapter 13 practice. Fact-intensive disputes at confirmation are not likely to fit the new direct appeal option.