Framing the Issues on Appeal Nuts and Bolts November 15, 2016

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1 Framing the Issues on Appeal Nuts and Bolts November 15, 2016 READ PART VIII OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE, AND THEN READ THEM AGAIN. THIS IS ONLY A GUIDE AND SUMMARY! I. Timely filing of notice of appeal. A. Notice of appeal must be filed with the bankruptcy clerk, Rule (a)(1), within 14 days of entry of judgment, order, or decree being appealed, Rule 8002(a)(1), unless the time is extended on a party s motion or by the filing of certain post-trial motions. 1. The notice of appeal must conform substantially to the Official Form and be accompanied by the judgment, order, or decree being appealed and the filing fee. Rule 8003(a)(3). 2. Timely filing of a notice of appeal is essential for the district court s appellate jurisdiction. B. Extension of time on motion. Rule 8002(d), (e). 1. The bankruptcy court may extend the time for the later of an additional 21 days or 14 days after entry of the order granting the motion, with certain exceptions. Rule 8002(e). 2. The motion for additional time must be filed within 14 days of entry of the judgment, order, or decree, or within 21 days after that deadline, if the party shows excusable neglect. Rule 8002(d)(1). 3. The court may not extend the time for filing a notice of appeal from a judgment, order, or decree that: (A) grants relief from the automatic stay; (B) authorizes the sale or lease of property or the use of cash collateral; (C) authorizes the obtaining of credit; (D) authorizes the assumption or rejection of an executory contract or unexpired lease; (E) approves a disclosure statement; or (F) confirms a plan. 4. If one party files a timely notice of appeal, any other party may file a notice of appeal within 14 days thereafter. Rule 8002(a)(3). 1 References to Rules are to the Federal Rules of Bankruptcy Procedure.

2 C. The time for the filing of a notice of appeal runs from the date of entry of an order disposing of the last of any of the following motions, Rule 8002(b): 1. Motion to make additional findings under Rule 7052 (generally incorporating Fed. R. Civ. P. 52, except for time limits); 2. Motion to alter or amend the judgment under Rule 9023 (generally incorporating Fed. R. Civ. P. 59 except for time limits); 3. Motion for a new trial under Rule 9023; or 4. Motion for relief under Rule 9024 (generally incorporating Fed. R. Civ. P. 60 except for time limits) if the motion is filed within 14 days after entry of judgment. D. Appeal as of right from final judgment, order, or decree. 28 U.S.C. 158(a)(1). 2 E. Appeal from interlocutory orders and decrees with leave of the district court. 28 U.S.C. 158(a)(3). Notice of appeal must be accompanied by a motion for leave to appeal, Rule 8004(a)(2). 1. The motion for leave to appeal must include: (A) the facts necessary to understand the question presented; (B) the question itself; (C) the relief sought; (D) the reasons why leave to appeal should be granted; and (E) a copy of the interlocutory order or decree and any related opinion or memorandum. Rule 8004(b). 2. A response in opposition or a cross-motion may be filed within 14 days after service of the motion for interlocutory appeal. Rule 8002(a)(3). F. Direct appeal to Eleventh Circuit. 1. Under 28 U.S.C. 158(d)(2)(A), the circuit courts have jurisdiction of an appeal from the bankruptcy court (whether the judgment, order, or decree is final or interlocutory) if (a) certification occurs as described below and (b) the circuit court authorizes the appeal. 2. The required certification may be made by (a) the bankruptcy court or the district court, acting on its own motion or on the request of any party to the judgment, order, or decree; or (b) all of the appellants and appellees, acting jointly. 2 An appeal as of right is also available from interlocutory orders and decrees issued under 11 U.S.C. 1121(d) increasing or reducing the time periods for a Chapter 11 debtor to file and obtain confirmation of a plan in order to preserve the debtor s exclusive right to file a plan. 28 U.S.C. 158(a)(2). 2

3 3. The required certification must be that one of the following requirements is met: a. The judgment, order, or decree involves a question of law as to which there is no controlling decision of the circuit or the Supreme Court or involves a matter of public importance; b. The judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or c. 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. 4. The bankruptcy court or district court must make the certification if it determines that one of the grounds exists (either on its own motion or at the request of a party) or if it receives a request from a majority of the appellants and a majority of the appellees to make the certification. 28 U.S.C. 158(d)(2)(B). 5. If a court makes the certification, the parties may supplement the certification with a short statement of the basis for the certification. 6. The appropriate court to make the certification is the court where the matter is pending. A matter remains pending in the bankruptcy court for this purpose for 30 days after the effective date of the first notice of appeal. Rule 8006(b). a. A request for certification must be filed within 60 days after entry of the judgment, order, or decree. 28 U.S.C. 158(d)(2)(E); Rule 8006(f)(1). b. The request must be served on all parties to the appeal and must include: (1) the facts necessary to understand the question presented; (2) the question itself; (3) the relief sought; (4) the reasons why direct appeal should be allowed, including which of the required circumstances exists; and (5) a copy of the judgment, order, or decree and any related opinion or memorandum. Rule 8006(f)(2). c. A party may file a response to the request within 14 days after the request is filed. Rule 8006(f)(3). 3

4 7. If the court certifies the direct appeal, a request for permission to take a direct appeal must be filed with the circuit clerk in accordance with F.R.App.P. 6(c) within 30 days after the certification becomes effective. 3 a. F.R.App.P. 6(c) incorporates all of F.R.App.P 5 (except subdivision (a)(3)). b. F.R.App.P 5 prescribes the procedures for seeking permission to appeal in the circuit court. c. If the circuit court grants permission, the appellant must pay required fees within 14 days. F.R.App.P. 5(d)(1). d. A notice of appeal to the circuit court need not be filed. The date of the order granting permission to appeal serves as the date of the notice of appeal for calculating time under the Federal Rules of Appellate Procedure. F.R.App.P. 5(d)(2). e. The appeal proceeds in the circuit court in the same general fashion as other appeals. Appellate Rule 6(c) prescribes the appellate and other rules that apply. 8. The appeal continues in the district court unless and until the circuit court grants permission to appeal to the circuit court. II. Transmission and docketing of the appeal. A. The bankruptcy clerk must promptly transmit the notice of appeal to the district court, Rule 8003(d)(1), and the district clerk dockets it, Rule 8003(d)(2). B. Prior to amendment of Part VIII of the Bankruptcy Rules dealing with appeals in 2014, docketing in the district court did not occur until the bankruptcy clerk transmitted the record, and the briefing schedule ran from the date of docketing the appeal in the district court. The briefing schedule now runs from the date that the district clerk dockets notice of receipt of the record or that it is electronically available. Rule 8016(e)(1). III. Statement of issues on appeal and designation of record; Transcripts; Transmission of the record. A. The appellant must file with the bankruptcy clerk and serve on the appellee a designation of the record and a statement of the issues to be presented. Rule 8009(a)(1). The designation and statement must be filed within 14 days after the 3 A certification is effective when the certification has been filed, a timely appeal has been taken under Rule 8003 or Rule 8004, and the notice of appeal has become effective under Rule Rule 8006(a). 4

5 notice of appeal becomes effective (generally, the date of its filing 4 ) in an appeal as of right of within 14 days after an order granting leave to appeal is entered in an interlocutory appeal. Rule 8009(1)(B). B. The appellee may file and serve a designation of additional items to be included in the record within 14 days after service of the appellant s designation. If the appellee files a cross-appeal, it must file and serve a designation of additional items to be included and a statement of issues to be presented in the cross-appeal. Rule 8009(a)(2). C. If a cross-appeal is filed, the cross-appellee may file a designation of additional items to be included in the record within 14 days after service of the cross-appellant s designation and statement. Rule 8009(a)(3). D. Any designation of items to be included in the record should include the docket number of the item. E. Transcript of Proceedings. 1. Within the time required for the appellant to file its designation and statement, it must either (a) order the transcript of the proceedings not already on file that it considers necessary for the appeal and file a copy of the order with the bankruptcy clerk or (b) file a certificate stating that the appellant is not ordering a transcript. Rule 8009(b)(1). 2. Within 14 days after the appellant files its transcript order or certificate, a cross-appellee must either (a) order a transcript of additional parts of the proceedings as it deems necessary and file a copy or (b) file a certificate that it is not ordering a transcript. Rule 8009(b)(2). 3. Within 14 days after the appellant or cross-appellant files its transcript order or certificate, the appellee may order a transcript of additional parts of the record and, if it does, must file a copy of the order. 4. If a party has ordered a transcript, the attorney should docket the order request under the following event code: Transcript Ordered Re: Notice of Appeal. 4 A notice of appeal that is filed before the entry of a judgment, order, or decree becomes effective on the date of and after the entry, Rule 8002(a)(2), and a notice of appeal filed while a post-trial motion that extends the time for the filing of a notice of appeal is pending becomes effective after the bankruptcy court disposes of the last such motion. Rule 8002(b)(2). 5

6 F. Transmission of record and docketing in district court 1. When the record is complete, the bankruptcy clerk transmits it or a notice that it is electronically available to the district clerk. Rule 8010(b)(1). 2. Upon receipt of the record or notice, the district clerk enters that information on the docket and notifies all the parties to the appeal. Rule 8010(b)(2). IV. Time for filing briefs and appendix; length of briefs; format requirements. A. Filing of briefs and appendix in appeal. 1. The appellant must file and serve a brief within 30 days after docketing of the notice (Rule 8010(b)) that the record has been received or is available electronically. Rules 8018(a)(1). An appendix to the brief (see below) must be filed with it. Rule 8018(b)(1). The length of the brief may not exceed 30 pages or 14,000 words or, if it uses monospaced text, 1300 lines. Rule 8015(7). 2. The appellee must file and serve a brief within 30 days after service of the appellant s brief. Rule 8018(a)(2). The appellee may file an appendix with the brief that contains material required to be included by the appellant or relevant to the appeal or cross-appeal, but omitted by the appellant. Rule 8018(b)(2). The length of the brief may not exceed 30 pages or 14,000 words or, if it uses monospaced text, 1300 lines. Rule 8015(7). 3. The appellant may serve and file a reply brief within 14 days after service of the appellee s brief, but it must be filed at least seven days before scheduled argument unless the district court, for good cause, allows a later file. The length of the brief may not exceed 15 pages or 7,000 words or, if it uses monospaced text, 650 lines. Rule 8015(7). 4. Failure to file brief. Rule 8018(a)(4). a. If the appellant fails to file a timely brief, the appellee may move to dismiss the appeal or the district court may dismiss it on its own motion. b. An appellee who fails to file a brief will not be heard at oral argument unless the district court grants permission. B. Filing briefs in case with cross-appeal. Rule Rule 8016 governs the filing of briefs when there is a cross-appeal. 6

7 2. The party who first files a notice of appeal is the appellant for purposes of the rule. If notices are filed on the same day, the plaintiff, petitioner, applicant, or movant in the proceeding below is the appellant. Rule 8016(b). 3. The appellant must file and serve a principal brief, which is due 30 days after the docketing of the notice that the record. Rules 8016(c)(1), 8016(d)(1). An appendix to the brief (see below) must be filed with it. Rule 8018(b)(1). The length of the brief may not exceed 30 pages or 14,000 words or, if it uses monospaced text, 1300 lines. Rule 8016(d)(7). 4. The appellee must file and serve a principal brief in the cross-appeal and, in the same brief, respond to the principal brief in the appeal. Rule 8016(c)(2). The appellee may file an appendix with the brief that contains material required to be included by the appellant or relevant to the appeal or cross-appeal, but omitted by the appellant. Rule 8018(b)(2). The brief is due 30 days after the appellant s principal brief is served. Rule 8016(d)(2). The length of the brief may not exceed 35 pages or 16,500 words or, if it uses monospaced text, 1,500 lines. Rule 8016(d). 5. The appellant must file and serve a brief that responds to the principal brief in the cross-appeal and may, in the same brief, reply to the response in the appeal. Rule 8016(c)(3). It is due 30 days after service of the appellee s principal and response brief. Rule 8016(d)(3). The length of the brief may not exceed 30 pages or 14,000 words or, if it uses monospaced text, 1300 lines. Rule 8016(d). 5. The appellee may file and serve a reply to the response in the crossappeal. Rule 8016(c)(4). It must be filed within 14 days after service of the appellant s response and reply brief. Rule 8016(d)(4). The length of the brief may not exceed 15 pages or 7,000 words or, if it uses monospaced text, 650 lines. Rule 8016(d). C. Rules with regard to use of volume limitations (words or lines) in briefs. 1. Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation. Rules 8015(a)(7)(B)(iii), 8016(d)(2)(D). 2. A certificate of compliance must be filed stating that the brief complies with the appropriate volume limitation. Rule 8015(a)(7)(C), 8016(d)(3). D. Rule 8015(a)(1) (6) specifies other requirements for the cover of the brief, its binding, paper size, line spacing and margins, typeface, and type styles. 7

8 V. Contents of appendix. A. The appellant must file and serve an appendix with its principal brief that includes the following, Rule 8018(b)(1); 1. The relevant entries in the bankruptcy docket; 2. The complaint and answer, or other equivalent filings; 3. The judgment, order, or decree from which the appeal is taken; 4. Any other orders, pleadings, findings, conclusions, or opinions relevant to the appeal; 5. The notice of appeal; and 6. Any relevant transcript or portion of it. B. The appellee may serve and file with its brief an appendix that contains material required to be included by the appellant or relevant to the appeal or cross-appeal, but omitted by the appellant. Rule 8018(b)(2). C. The appellant as cross-appellee may also serve and file with its response an appendix that contains material relevant to issues initially raised by the principal brief in the cross-appeal, but omitted by the cross-appellant. Rule 8018(b)(3). VI. Contents of briefs. A. Appellant s brief. The appellant s brief must include the following under appropriate headings and in the order indicated, Rule 8014(a): 1. A corporate disclosure statement, if required by Rule 8012; 2. A table of contents, with page references; 3. A table of authorities cases (alphabetically arranged), statutes, and other authorities with references to pages where they are cited; 4. A jurisdictional statement, including: (a) The basis for the bankruptcy court s subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; 8

9 (b) The basis for the district court s jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (c) The filing dates establishing the timeliness of the appeal; and (d) An assertion that the appeal is from a final judgment, order, or decree, or information establishing the district court s jurisdiction on another basis. 5. A statement of the issues presented and, for each one, a concise statement of the applicable standard of appellate review; 6. A concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record; 7. A summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings; 8. The argument, which must contain the appellant s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; 9. A short conclusion stating the precise relief sought; and 10. The certificate of compliance, if required by Rule 8015(a)(7) or (b). B. Appellee s brief. The appellee s brief must conform to the requirements stated in (1) (8) and (10) above, except that none of the following are required unless the appellee is dissatisfied with the appellant s statement, Rule 8014(b): 1. The jurisdictional statement; 2. The statement of the issues and the applicable standard of appellate review; and 3. The statement of the case. C. Appellant s reply brief. The reply brief must conform to the requirements stated in A (2) and (3) above. Rule 8014(c). D. Cross-appellant s brief. The cross-appellant s brief must include all of the matters in A (1) (10) with regard to the cross-appeal, except that it need not 9

10 include a statement of the case unless the appellee is dissatisfied with the appellant s statement. Rule 8016(c)(2). E. Cross-appellee s brief. The cross-appellee s brief must include all of the matters in A (2) (8) and (10) with regard to the cross-appeal, except that none of the following are required unless the appellee is dissatisfied with the appellee s statement in the cross-appeal, Rule 8016(c)(3): 1. The jurisdictional statement; 2. The statement of the issues and the applicable standard of appellate review; and 3. The statement of the case. F. Appellee s reply brief to response in cross-appeal. The appellee s reply brief must include all of the matters in A (2), (3) and (10). Rule 8016(c)(4). VII. Oral argument. Rule A. A party may file, or the district court may require, a statement explaining why oral argument should, or need not, be permitted. Rule 8019(a). The parties may agree to submit a case for decision on the briefs, but the district court may direct that the case be argued. Rule 8019(g). B. The district court must allow oral argument unless the district judge examines the brief and record and determines that oral argument is unnecessary because (1) the appeal is frivolous; (2) the dispositive issues have been authoritatively decided; or (3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. Rule 8019(b). C. The appellant opens and concludes the argument. Counsel must not read at length from briefs, the record, or authorities. Rule 8019(b). VIII. Motion for rehearing. Rule A. A motion for rehearing must be filed within 14 days after entry of judgment on appeal, unless shortened or extended by order of the district court. Rule 8022(a)(1). B. The motion must state with particularity each point of law or fact that the movant believes the district court overlooked or misapprehended and must argue in support of the motion. Oral argument is not permitted. Rule 8022(a)(2). C. No response to the motion is required unless the district court requests it, but rehearing will not ordinarily be granted in the absence of such a request. Rule 8022(a)(3). 10

11 D. If a motion for rehearing is granted, the district court may do any of the following, Rule 8022(a)(4): 1. Make a final disposition of the appeal without reargument; 2. Restore the case to the calendar for reargument or resubmission; or 3. Issue any other appropriate order. 11