White Rabbit Bankruptcy Appeals: The (Unconstitutional) Jurisdictional Significance of Being Late

Unlike ordinary civil litigation, which usually allows thirty days to appeal, appeals from bankruptcy court usually allow only fourteen. Adding to that difference, bankruptcy cases can have many appealable final decisions instead of just one. But what happens if an appeal is filed late? In ordinary civil litigation, that usually means dismissal for lack of subject matter jurisdiction. As for bankruptcy appeals, it depends on the circuit because, although most agree that it must be dismissed on jurisdictional grounds, others disagree—meaning that an appellee might forfeit the right to seek dismissal of an untimely appeal if the appellee doesn’t act. Why the disagreement? Well, unlike the civil appeal statute, which expressly prescribes a thirty-day time limit, the bankruptcy appeal statute doesn’t specify the fourteen-day limit itself—it points to a bankruptcy rule. And, in the twenty-first century, there has been a lot of Supreme Court precedent putting a wedge between those time limits that are jurisdictional and those that are claims-processing rules. Here, I posit that the bankruptcy appeal deadline is jurisdictional. But because of its pointing to a rule for the exact time limit, I also posit that the statute is an unconstitutional delegation by Congress. The consequences, however, may not be so earth-shattering. To learn more, follow the white rabbit.