Akers v. Beal Bank

• Court: District Court, District of Columbia
• Decided: January 31, 2018
• Docket: Civil Action No. 2017-1488
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARTHA AKERS,

Appellant,

v. Case No. 17-cv-1488 (CRC) BEAL BANK,

Appellee.

MEMORANDUM OPINION

Pro se appellant Martha Akers noticed an appeal from an order by the Bankruptcy Court

dismissing her adversary proceeding against Beal Bank. Beal Bank has moved for the Court to

dismiss Akers’s appeal or, alternatively, for summary affirmance. The Court issued a Fox/Neal

Order to Akers on December 21, 2017, directing her to respond to Beal Bank’s motion by

January 5, 2018 and warning that failure to do so could result in the dismissal of her case. See

Order (Dec. 21, 2017); see also Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per

curiam). Akers has not filed a response.

Beal Bank contends that this case should be dismissed because Akers’s untimely notice

of appeal strips this Court of jurisdiction. Beal Bank Mot. Dismiss Appeal ¶ 6. Under Federal

Rule of Bankruptcy Procedure 8002(a), a party must file a notice of appeal with the bankruptcy

clerk within 14 days of the entry of the order seeking to be appealed. This time period can be

extended by the bankruptcy court by a motion within that 14-day period or by a motion making a

showing of excusable neglect filed within 21 days after that 14-day period ends. Fed. R. Bankr.

P. 8002(d)(1).

Akers’s notice of appeal was not filed within the limits prescribed by Rule 8002(a). The

order dismissing her adversary proceeding was entered on May 2, 2017. The subsequent order barring her from filing subsequent adversary proceedings was entered on May 26, 2017. Both

orders were mailed to her the same day they were entered. Akers’s notice of appeal was filed on

June 26, 2018. This comes over a month after the two orders in her adversary proceeding were

issued, more than the requisite fourteen days. Nor did Akers request that the bankruptcy court

extend her period of time in which to file an appeal. Thus, Akers’s notice of appeal is not timely.

Beal Bank argues that this flaw is jurisdictional. The courts of appeals that have

confronted this question have all agreed. See, e.g., In re Sobczak-Slomczewski, 826 F.3d 429,

432 (7th Cir. 2016) (per curiam); In re Berman-Smith, 737 F.3d 997, 1001–03 (5th Cir. 2013)

(per curiam); In re Caterbone, 640 F.3d 108, 112–14 (3d Cir. 2011); In re Latture, 605 F.3d 830,

833–37 (10th Cir. 2010); see also Matter of Kite, 2018 WL 400743, at *3 (5th Cir. Jan. 12, 2018)

(per curiam) (“Every other court of appeals to consider Rule 8002(a) post-Kontrick and Bowles

has stated that the rule is jurisdictional.”).

So, too, does this Court. The Supreme Court has “long held that the taking of an appeal

within the prescribed time is ‘mandatory and jurisdictional.’” Bowles v. Russell, 551 U.S. 205,

209 (2007) (citation omitted); see also id. at 214 (“Today we make clear that the timely filing of

a notice of appeal in a civil case is a jurisdictional requirement.”). Additionally, the statute

providing district courts jurisdiction over bankruptcy appeals states that such appeals “shall be

taken . . . in the time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2).

Thus, Congress has imposed a timeliness requirement by statute—and has tied that timeliness

requirement to the jurisdiction of the district courts. See, e.g., In re Latture, 605 F.3d at 837; cf.

Kontrick v. Ryan, 540 U.S. 443, 453 (2004) (claims processing rules not set by statute are not

jurisdictional). For these reasons, the Court agrees that the time limit in Rule 8002(a) is

jurisdictional.

2 Akers’s failure to file a timely notice of appeal—or to seek an extension from the

bankruptcy court—deprives the Court of jurisdiction. The Court will thus dismiss her appeal. A

separate Order shall accompany this memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: January 31, 2018