For years, the United States Court of Appeals for the Third Circuit, and courts in the District of New Jersey, regarded Bankruptcy Rule 8002(a)’s deadline for filing a notice of appeal as mandatory and jurisdictional, meaning that a failure to timely appeal creates a jurisdictional defect barring appellate review. In the mid-2000s, however, the issuance of certain Supreme Court opinions caused the Third Circuit to question this interpretation. In fact, in one case, the Third Circuit changed course and found that Rule 8002(a) is only a “claim-processing” rule, meaning that the appellee can waive or forfeit the right to invoke the rule if the appellee fails to timely raise it. Recently, though, the Third Circuit, citing subsequent Supreme Court authority, re-established the principle that the deadline for filing a bankruptcy appeal is in fact jurisdictional, and hence, nonwaivable. This article briefly examines these developments.
Background
Section 158 of Title 28 governs the appealability of orders issued by a bankruptcy court. Section 158(a) authorizes a district court to hear appeals from final judgments, orders and decrees, and with leave of the district court, from interlocutory orders and decrees, of a bankruptcy court. 28 U.S.C. § 158(a).
