from the United States Bankruptcy Court for the Western
District of Michigan at Grand Rapids. No. 13-07534-Scott W.
Elizabeth M. Abood-Carroll, ORLANS PC, Troy, Michigan, for
Melindia Jackson, Wixom, Michigan, pro se.
Before: DELK, HUMPHREY, and PRESTON Bankruptcy Appellate
PAULETTE J. DELK, BANKRUPTCY APPELLATE PANEL JUDGE.
Panel sua sponte raises the question of whether this
appeal was filed late for the purposes of 28 U.S.C. §
158(c)(2) and finds that it was. Following the Supreme
Court's precedent in this area, including its recent
decision in Hamer v. Neighborhood Housing Services of
Chicago,  the Panel finds that the time requirements
of 28 U.S.C. § 158(c)(2) are jurisdictional in nature
and, therefore, the Panel is without jurisdiction to hear
late appeals, including this one.
September 25, 2013, Melindia Gail Jackson
("Jackson") filed a voluntary petition for relief
under chapter 7. After a hearing in March 2014 the bankruptcy
court granted U.S. Bank National Association's motion to
lift the automatic stay on Jackson's residence. With the
stay lifted, the bank proceeded with a foreclosure action in
state court. Despite much opposition, the bank foreclosed on
Jackson's residence on May 15, 2014 and Jackson's
right to redeem the property expired six months later. On
October 29, 2014, the Chapter 7 Trustee filed a no-asset
report and on February 23, 2015, Jackson obtained a discharge
of her debts.
order on appeal before this panel is a result of a series of
letters and requests submitted by Jackson to the bankruptcy
court in December 2016. In these letters, Jackson: (1)
notified the bankruptcy court that the account number for
creditor Wells Fargo had changed [ECF No. 113]; (2) requested
"reconsideration of House being exempt in the bankruptcy
case" where she sought to unwind a foreclosure and
reclaim her former residence [ECF No. 114]; (3) requested a
"sign[ed] court Order stating that the amended Scheduled
have been listed, dismissed and entered" [ECF No. 115];
and (4) requested "Reconsideration of transferring
Bankruptcy Case" seeking reconsideration of a prior
order which denied her request to transfer the bankruptcy
case to the Eastern District of Michigan [ECF No. 116]. After
a hearing, the bankruptcy court issued a Memorandum Decision
and Order on January 26, 2017 [ECF No. 133]. Except for
acknowledging Jackson's notice of a new account number
for creditor Wells Fargo, that order denied all of
Jackson's requests for relief included in the four
letters. That order also directed the Clerk to "prepare
and enter a final decree discharging the trustee and closing
the case promptly but not earlier than twenty eight days
after the entry" of that January 26, 2017 order. Jackson
filed her Notice of Appeal of that order 28 days later on
February 23, 2017. On February 24, 2017, the Clerk docketed a
"Text Order of Final Decree" which referenced
the discharge of the Chapter 7 Trustee and closed the case
pursuant to the bankruptcy court's January 26, 2017
the Panel may proceed to the merits of the appeal, we must
assure ourselves of our jurisdiction to hear this case.
Section 158 of title 28 grants the Bankruptcy Appellate Panel
jurisdiction to hear appeals of final orders of bankruptcy
courts. For purposes of appeal, an order is final if it
"ends the litigation on the merits and leaves nothing
for the court to do but execute the
judgment." "A disposition is final if it
contains 'a complete act of adjudication, ' that is,
a full adjudication of the issues at bar, and clearly
evidences the judge's intention that it be the
court's final act in the matter."
bankruptcy court's order before the panel disposed of all
of the matters raised by Jackson and left nothing for the
court to do but administratively close the case.
Specifically, with regard to Jackson's four requests, the
order explains that the bankruptcy court (1) found no grounds
warranting reconsideration of its refusal to transfer the
bankruptcy case to the Eastern District of Michigan, where
Jackson now resides; (2) found no basis for unwinding the
foreclosure of Jackson's former residence and that it
lacked jurisdiction over the matter due to an appeal pending
in district court; (3) found that Jackson's ECF No. 113
accomplished Jackson's objective of giving interested
parties notice of a new account number from Wells Fargo; and
(4) acknowledged Jackson's right to amend her schedules
to list omitted creditors as a matter of course at any time
before the case is closed, provided Jackson also gives notice
of the amendment to the affected entities.
order further states that the "[c]ourt has considered
the Debtor's other arguments and finds in them no grounds
for relief. After reviewing the Debtor's recent filings,
and having conducted a hearing on these issues, the court has
determined to withhold all relief."
order goes on to provide as follows:
NOW, THEREFORE, IT IS HEREBY ORDERED that except as provided
above with respect to the Debtor's new account numbers,
all requests for relief included within ECF Nos. 113, 114,
115 and 116 are DENIED.
IT IS FURTHER ORDERED that the Clerk shall prepare and enter
a final decree discharging the trustee and closing the case,
promptly but not earlier than twenty eight days after entry
of this Memorandum of Decision & Order.
IT IS FURTHER ORDERED that the Clerk shall serve a copy of
this Memorandum of Decision & Order pursuant to
Fed.R.Bankr.P. 9022 and LBR 5005-4 upon Debtor Melindia Gail
Jackson, John M. Van Elk, Esq., Elizabeth M. Abood-Carroll,
Esq., Thomas R. Tibble, chapter 7 Trustee, and the Office of
the United States Trustee.
above language supports a conclusion that the order is a
complete act of adjudication, a full adjudication of the
issues at bar, and clearly evidences the bankruptcy
court's intention that it be the court's final act in
the matter. Jackson filed her notice of appeal on February
23, 2017, 28 days after the final order.
158 of Title 28 confers jurisdiction to hear appeals from
bankruptcy courts upon the district courts and bankruptcy
appellate panels. Specifically, 28 U.S.C. § 158(c)(2)
provides that: "[a]n 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." Rule
8002(a)(1) provides that, notwithstanding exceptions not
relevant presently, "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). Because the Notice of Appeal was
filed 28 days after the entry of the final order, it is late.
The question this Panel must answer is this: what are the
jurisdictional consequences of this missed deadline?
the past 14 years, the Supreme Court has written extensively
on the jurisdictional consequences of statutory filing
requirements; however, it has not yet considered the filing
requirements imposed by 28 U.S.C. § 158(c)(2). The Court
places these filing requirements into one of two broad bins:
Jurisdictional filing requirements, which may be brought up
at any time, and are not subject to waiver, forfeiture, or
equitable tolling, and mandatory claims-processing rules,
which are subject to those exceptions.
Sixth Circuit Court of Appeals and the Sixth Circuit
Bankruptcy Appellate Panel have long held that the 14 day
time imposed by 28 U.SC. § 158(c)(2) with reference to
Bankruptcy Rule 8002 is jurisdictional in
nature. Moreover, all ten circuit courts that have
considered this question have found that compliance with
§ 158(c)(2) is a jurisdictional
circuits have been uniform in their jurisdictional treatment
of § 158, but in Reed Elsevier, Inc. v.
Muchnick, the Supreme Court held the statute at issue in
that case was not jurisdictional, explaining that in prior
cases "we relied on longstanding decisions of this
Court typing the relevant prescriptions
'jurisdictional.' . . . Amicus cites well
over 200 opinions that characterize § 411(a) as
jurisdictional, but not one is from this Court . . .
." Therefore, to be sure of our jurisdiction
in this appeal, the Panel must decide if recent Supreme Court
decisions, and Hamer in particular, require us to
depart from the clear path outlined by the Sixth Circuit and
others. We find that they do not.
changes little in how the Supreme Court analyzes limitations
on the courts' jurisdiction. Hamer's facts
are quite similar to those of Bowles v.
Russell. In both cases, a district court extended
the time for a petitioner to file a notice of appeal beyond
the time the rule allowed for such extensions. In both
cases, the petitioner filed within the time given by the
extension, but beyond the time allowed by the rule. The Court
applied the same test in both cases and found that the time
restriction in Bowles was mandated by 28 U.S.C.
§ 2107(c), which addresses the time for an appeal to the
court of appeals, and therefore was jurisdictional. However,
in Hamer, the relevant time limitation was not to be
found in statutory law, and so was not jurisdictional.
the similarities between these two decisions, the Court found
it necessary to return to this question because
"[s]everal Courts of Appeals, including the Court of
Appeals in Hamer's case, have tripped over our statement
in Bowles that 'the taking of an appeal within
the prescribed time is mandatory and
jurisdictional.'" The Court explained:
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.
Court further explained that "[i]n cases not involving
the timebound transfer of adjudicatory authority from one
Article III court to another, we have additionally applied a
clear-statement rule, " which requires courts to treat
statutory filing requirements as non-jurisdictional unless
Congress makes a clear statement that it intends for the
requirements to carry jurisdictional
consequences. Because the Hamer Court did not
need to apply the clear statement rule, its reference to it
assures us of its continued applicability.
with the benefit of the judicial gloss provided by
Hamer, the Panel will determine its jurisdiction
over this late-filed appeal by making two inquiries into the
nature of the time limit set by 28 U.S.C. § 158(c)(2).
First, is the time limit statutory in nature? And second,
because § 158(c)(2) governs the transfer of adjudicatory
authority from an Article I court (the bankruptcy court) to
either an Article III (district court) or another Article I
court (bankruptcy appellate panel), we must determine whether
Congress made a clear statement that it intended that time
limit to carry jurisdictional consequences.
The Deadline Imposed by 28 U.S.C. § 158(c)(2) Is Set by
Court's current line of inquiry into the jurisdiction of
federal courts began with Kontrick v. Ryan, when it
held that "[o]nly Congress may determine a lower federal
court's subject-matter jurisdiction." Because the
rules of procedure are prescribed by the Court "'it
is axiomatic' that such rules 'do not create or
withdraw federal jurisdiction.'" Typically,
the question of whether a filing requirement is established
by a statute or rule is an easy one, but this case is not
typical. Section 158(c)(2) presents a rare sort of statute
that specifically references a rule, requiring that appeals
"shall be taken . . . in the time provided by ...