(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
Notes of Advisory Committee on Rules—1967
This rule is substantially a restatement of present procedure. See D.C. Cir. Rule
; 6th Cir. Rule
; 7th Cir. Rule
; 10th Cir. Rule
Present circuit rules commonly provide that the petition for allowance of an appeal shall be filed within the time allowed by Section 25 of the Bankruptcy Act for taking appeals of right. For the reasons explained in the Note accompanying Rule
, that rule makes the time for appeal in bankruptcy cases the same as that which obtains in other civil cases and thus supersedes Section
. Thus the present rule simply continues the former practice of making the time for filing the petition in appeals by allowance the same as that provided for filing the notice of appeal in appeals of right.
Notes of Advisory Committee on Rules—1979 Amendment
The proposed amendment adapts to the practice in appeals by allowance in bankruptcy proceedings the provisions of proposed Rule
above, requiring payment of all fees in the district court at the time of the filing of the notice of appeal. See Note to Rule
Notes of Advisory Committee on Rules—1989 Amendment
A new Rule
is proposed. The Bankruptcy Reform Act of 1978, Pub. L. No. 95–598, 92 Stat. 2549
, the Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), and the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98–353, 98 Stat. 333
, have made the existing Rule
Subdivision (a). Subdivision (a) provides that when a district court exercises original jurisdiction in a bankruptcy matter, rather than referring it to a bankruptcy judge for a final determination, the appeal should be taken in identical fashion as appeals from district court decisions in other civil actions. A district court exercises original jurisdiction and this subdivision applies when the district court enters a final order or judgment upon consideration of a bankruptcy judge’s proposed findings of fact and conclusions of law in a non-core proceeding pursuant to 28
U.S.C. § 157
or when a district court withdraws a proceeding pursuant to 28
U.S.C. § 157
. This subdivision is included to avoid uncertainty arising from the question of whether a bankruptcy case is a civil case. The rules refer at various points to the procedure “in a civil case”, see, e.g. Rule
. Subdivision (a) makes it clear that such rules apply to an appeal from a district court bankruptcy decision.
Subdivision (b). Subdivision (b) governs appeals that follow intermediate review of a bankruptcy judge’s decision by a district court or a bankruptcy appellate panel.
Subdivision (b)(1). Subdivision (b)(1) provides for the general applicability of the Federal Rules of Appellate Procedure, with specified exceptions, to appeals covered by subdivision (b) and makes necessary word adjustments.
Subdivision (b)(2). Paragraph (i) provides that the time for filing a notice of appeal shall begin to run anew from the entry of an order denying a rehearing or from the entry of a subsequent judgment. The Committee deliberately omitted from the rule any provision governing the validity of a notice of appeal filed prior to the entry of an order denying a rehearing; the Committee intended to leave undisturbed the current state of the law on that issue. Paragraph (ii) calls for a redesignation of the appellate record assembled in the bankruptcy court pursuant to Rule 8006 of the Rules of Bankruptcy Procedure. After an intermediate appeal, a party may well narrow the focus of its efforts on the second appeal and a redesignation of the record may eliminate unnecessary material. The proceedings during the first appeal are included to cover the possibility that independent error in the intermediate appeal, for example failure to follow appropriate procedures, may be assigned in the court of appeals. Paragraph (iii) provides for the transmission of the record and tracks the appropriate subsections of Rule
. Paragraph (iv) provides for the filing of the record and notices to the parties. Paragraph (ii) and Paragraph (iv) both refer to “a certified copy of the docket entries”. The “docket entries” referred to are the docket entries in the district court or the bankruptcy appellate panel, not the entire docket in the bankruptcy court.
Notes of Advisory Committee on Rules—1993 Amendment
Note to Subparagraph (b)(2)(i). The amendment accompanies concurrent changes to Rule
. Although Rule
never included language such as that being changed in Rule
, language that made a notice of appeal void if it was filed before, or during the pendency of, certain posttrial motions, courts have found that a notice of appeal is premature if it is filed before the court disposes of a motion for rehearing. See, e.g., In re X-Cel, Inc., 823 F.2d 192 (7th Cir. 1987); In re Shah, 859 F.2d 1463 (10th Cir. 1988). The Committee wants to achieve the same result here as in Rule
, the elimination of a procedural trap.
Committee Notes on Rules—1998 Amendment
The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only.
Subdivision (b). Language is added to Rule
to conform with the corresponding provision in Rule
. The new language is clarifying rather than substantive. The existing rule states that a party intending to challenge an alteration or amendment of a judgment must file an amended notice of appeal. Of course if a party has not previously filed a notice of appeal, the party would simply file a notice of appeal not an amended one. The new language states that the party must file “a notice of appeal or amended notice of appeal.”
Committee Notes on Rules—2009 Amendment
Subdivision (b)(2)(B). The times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule
References in Text
The Bankruptcy Rules, referred to in subd. (b)(2)(A)(i), (B)(i), are set out in the Appendix to Title 11, Bankruptcy.