Wilkins v. Menchaca (In re Wilkins)

587 B.R. 97

IN RE: Yavaughnie Renee WILKINS, Debtor.

Yavaughnie Renee Wilkins, Appellant,

v.John J. Menchaca, Chapter 7 Trustee; Schreiber Family Trust dated March 22, 1989, Appellees.

BAP Nos. CC–17–1335–KuLS

CC–17–1337–KuLS

CC–17–1346–KuLS (Related Appeals)

Bk. No. 2:16–bk–12328–SK

United States Bankruptcy Appellate Panel of the Ninth Circuit.

Argued and Submitted on May 24, 2018 at Pasadena, California

Filed—June 28, 2018

Andrew M. Wyatt of Wyatt Law argued for appellant Yavaughnie Renee Wilkins; William J. Wall argued for appellee Schreiber Family Trust.

Before: KURTZ, LAFFERTY, and SPRAKER, Bankruptcy Judges.

KURTZ, Bankruptcy Judge:

I. PROCEDURAL HISTORY

In these related appeals, chapter 7¹ debtor Ms. Yavaughnie Wilkins appeals from the bankruptcy court's (1) Order Granting Trustee's Motion For Conversion To Chapter 7 (Conversion Order) and from the portion of the Order Denying Ms. Wilkins' Motion for Reconsideration related to the Conversion Order (BAP No. CC–17–1335); (2) Order Granting Trustee's Motion to Sell Real Estate (Sale Order) and from the portion of the Order Denying Ms. Wilkins' Motion For Reconsideration related to Sale Order (BAP No. CC–17–1337); and (3) Order Granting Turnover Order and Writ of Possession (BAP No. CC–17–1346).

Ms. Wilkins filed a single notice of appeal which was untimely filed as to all of the above-referenced orders. The BAP Clerk's office issued a notice of deficiency requesting the parties to explain why these appeals should not be dismissed. Ms. Wilkins' counsel responded by requesting an extension of time to appeal under Rule 8002(d)(1)(B), claiming excusable neglect. Appellee, John J. Menchaca, the chapter 7 trustee, maintained that the standards for excusable neglect were not met and therefore the appeals should be dismissed. Appellee, Schreiber Family Trust (SFT),² responded similarly and also contended that counsel's request for an extension of time to appeal was untimely under Rule 8002(d)(1)(B). Therefore, the Panel was required to dismiss the appeals for lack of jurisdiction. SFT subsequently filed a motion to dismiss these appeals on these same grounds.

In light of the Supreme Court's decision in Hamer v. Neighborhood Housing Services of Chicago, ––– U.S. ––––, 138 S.Ct. 13, 199 L.Ed.2d 249 (2017), the Panel sua sponte requested further briefing on whether the 14–day time deadline for filing an appeal from a bankruptcy court's decision was jurisdictional, thereby requiring dismissal of these appeals, or whether the time deadline was a mandatory claim-processing rule subject to waiver or forfeiture.

Having reviewed the briefs from Ms. Wilkins and SFT and considered the oral arguments of counsel, we conclude that the 14–day time deadline in Rule 8002(a) remains a mandatory and jurisdictional requirement in this court as the Ninth Circuit has held for decades. Accordingly, we dismiss these three appeals for lack of jurisdiction.

II. JURISDICTION

We have jurisdiction to determine our own jurisdiction and consider the issue de novo. Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017). The Panel's first consideration on appeal is our jurisdiction. Id.

III. DISCUSSION

A. Time Deadline For Appeal: The Jurisdictional/Claim–Processing Rule Dichotomy

In Hamer, the Supreme Court considered whether the maximum time a court may extend an appeal deadline in FRAP(4)(a)(5)(C), in a case in which the appellant received timely notice of the judgment or order appealed from, was a jurisdictional requirement or a mandatory claim-processing rule that was subject to waiver or forfeiture.

Section 2107 of title 28 and FRAP (4)(a)(1) state that in a civil case, the notice of appeal must be filed within 30 days after entry of the judgment or order appealed from. FRAP(4)(a)(5) addresses the time deadlines for extending the 30–day period by motion:

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

In a unanimous decision, the Hamer court held that FRAP(4)(a)(5)(C), which limits the length of any extension, was a mandatory claim-processing rule because the time limit arises from a rule, in contrast to a non-waivable and non-forfeitable jurisdictional requirement arising from a statute. The court emphasized:

Only Congress may determine a lower federal court's subject-matter jurisdiction. Accordingly, a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time. A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.

138 S.Ct. at 17 (citations and internal quotation marks omitted).

The court further noted that the distinction between a jurisdictional rule and a claim-processing rule is "critical" because "[f]ailure to comply with a jurisdictional time prescription ... deprives a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result." Id. However, "[m]andatory claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited." Id. at 17–18 (citing Manrique v. United States, 581 U.S. ––––, ––––, 137 S.Ct. 1266, 1271–1272, 197 L.Ed.2d 599 (2017) ). The Hamer court reserved the issue whether mandatory claim-processing rules may be subject to equitable exceptions. Id. at 18 n.3 (citing Kontrick v. Ryan, 540 U.S. 443, 457, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ).

Hamer follows a line of Supreme Court cases which have considered anew the historical use of the term "jurisdictional" in connection with time deadlines set forth in statutes versus procedural rules. The Supreme Court's precedent, including Hamer, shapes a rule of decision that 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." Hamer, 138 S.Ct. at 20 (citations omitted); cf. Kontrick, 540 U.S. 443, 124 S.Ct. 906 (finding Rule 4004 which sets the time within which an objection to a debtor's discharge must be filed, is not a jurisdictional requirement despite its "inflexible," "unalterable" nature); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (holding that the time limit and extension requirements set forth in Federal Rules of Criminal Procedure 33 and 45 are claim-processing rules and nonjurisdictional).

In cases not involving the timebound transfer of adjudicatory authority from one Article III court to another, the Supreme Court has applied the clear-statement rule: "A rule is jurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional.’ " Hamer, 138 S.Ct. at 20 n.9 (citing Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). Accordingly, we must examine whether there is any clear indication that Congress wanted the 14–day time deadline to file a notice of appeal in Rule 8002(a) to be jurisdictional. Although Congress's intent must be clear, it need not be explicit. Hamer, 138 S.Ct. at 20 n.9 (citing Sebelius v. Auburn Regional Med. Ctr., 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). When applying the clear statement rule, the Supreme Court reminds us that " ‘most [statutory] time bars are nonjurisdictional.’ " Hamer, 138 S.Ct. at 20 n.9 (alteration in original) (quoting United States v. Kwai Fun Wong, 575 U.S. ––––, ––––, 135 S.Ct. 1625, 1632, 191 L.Ed.2d 533 (2015) ).

In Henderson v. Shinseki, the Supreme Court also observed that the statute/rule distinction is not quite that simple to apply because Congress is free to attach the conditions that go with the jurisdictional label to a deadline that the Court would normally consider a claim-processing rule. 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (citing Bowles v. Russell, 551 U.S. 205, 209–210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ). The Court stated that in determining whether Congress intended a particular provision to be jurisdictional, "[c]ontext, including this Court's interpretation of similar provisions in many years past, is relevant. When a long line of this Court's decisions left undisturbed by Congress has treated a similar requirement as jurisdictional, we will presume that Congress intended to follow that course." Henderson, 562 U.S. at 436, 131 S.Ct. 1197 (citations and internal quotation marks omitted); see also Sebelius, 568 U.S. at 153–154, 133 S.Ct. 817 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010), for the same proposition).

B. Analysis

Mindful of these guidelines and the Supreme Court's caution against reckless use of the term "jurisdictional," we turn to 28 U.S.C. § 158, which governs bankruptcy appeals. In that statute, Congress gave jurisdiction to the district court in subsection (a), and this Panel in su...