FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 29, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court In re: MICHAEL LYNN ROBERTSON,
Debtor.
BANNER BANK, formerly doing business in Utah as AmericanWest Bank or Far West Bank,
Plaintiff - Appellee, No. 18-4060 v. (BAP No. 17-034-UT) (Bankruptcy Appellate Panel) MICHAEL LYNN ROBERTSON,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________
The United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP)
dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of
jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filed
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. under Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did
not toll the time limit for filing his notice of appeal from the bankruptcy court’s
underlying judgment. Accordingly, the BAP concluded that his notice of appeal was
untimely and that the BAP lacked jurisdiction. Exercising jurisdiction under
28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 9023 motion was
untimely and reaffirm Tenth Circuit precedent that the time to file a notice of appeal
from a bankruptcy court is jurisdictional. We also hold that an untimely Rule 9023
motion is ineffective to toll the time for filing a notice of appeal and that the BAP
may raise the timeliness of a Rule 9023 motion sua sponte. We deny without
prejudice appellee’s request for attorney fees.
I. Overview of legal framework
The issues in this appeal turn primarily on one statute and several rules of
bankruptcy procedure governing the time to file a notice of appeal from a bankruptcy
court. We therefore set out the relevant legal framework before turning to the facts
and procedural background of this case.
In 28 U.S.C. § 158(c)(2), Congress included a timeliness condition for taking
appeals from bankruptcy court decisions: “An 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.” § 158(c)(2) (emphasis added). In
turn, Bankruptcy Rule 8002(a)(1) states: “Except as provided in subdivisions (b) and
(c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after
2 entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P.
8002(a)(1). An exception in subdivision (b) is relevant here and provides that Rule
8002(a)(1)’s 14-day time period for filing a notice of appeal can be extended when
certain motions, including a Rule 9023 motion, are timely filed:
If a party files in the bankruptcy court any of the following motions and does so within the time allowed by these rules, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: . . . (B) to alter or amend the judgment under Rule 9023[.] Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And Bankruptcy Rule 9023
requires that “[a] motion for a new trial or to alter or amend a judgment shall be filed
. . . no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023.
With this framework in mind, we turn to the factual and procedural
background of this case.
II. Factual and procedural background
Through counsel, Mr. Robertson filed a Chapter 7 bankruptcy petition. Banner
Bank (Bank) initiated an adversary proceeding seeking to except from discharge a
deficiency judgment it had obtained against Mr. Robertson in Utah state court. After
Mr. Robertson’s counsel withdrew, Mr. Robertson proceeded pro se, and the parties
filed cross-motions for summary judgment. On March 30, 2017, the bankruptcy
court entered an order and judgment granting the Bank’s motion and denying
Mr. Robertson’s motion. Fourteen days later, on April 13, 2017, Mr. Robertson
mailed a Rule 9023 motion to the bankruptcy court, asking the court to reconsider,
alter, or amend the judgment. The motion was entered on the bankruptcy court’s
3 docket on April 14, 2017, which was 15 days after the judgment. The parties fully
briefed the motion, and the Bank never complained that the motion was untimely.
The bankruptcy court denied the motion on the merits, never mentioning whether the
motion was timely.
On July 14, 2017, 14 days after the bankruptcy court disposed of the
Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of
appeal designated only the bankruptcy court’s March 30, 2017 order and judgment as
the subject of the appeal. After the parties completed merits briefing—where the
Bank did not dispute that the BAP had jurisdiction over the appeal—the BAP issued
an order to show cause why the appeal should not be dismissed for lack of
jurisdiction because the notice of appeal appeared untimely.
After considering the parties’ responses to the show-cause order, the BAP
determined that the notice of appeal was untimely. The BAP concluded that because
Mr. Robertson’s Rule 9023 motion was filed 15 days after entry of judgment, it was
untimely and therefore did not toll the running of Rule 8002(a)(1)’s 14-day appeal
period, which the BAP treated as jurisdictional. In reaching its conclusions, the BAP
rejected Mr. Robertson’s argument that mailing the Rule 9023 motion on the
fourteenth day after entry of the judgment was sufficient to render the motion timely
filed, which the BAP said occurs when “a document [is] received by the clerk,” R.,
Vol. I at 35. The BAP also rejected his argument that by mailing the motion to the
clerk, he had served the clerk, and that service is complete upon mailing. The BAP
reasoned that Rule 9023 requires filing within 14 days, and service is not equivalent
4 to filing. Accordingly, the BAP concluded that his notice of appeal was untimely and
dismissed the appeal for lack of jurisdiction.
Mr. Robertson filed a motion for rehearing or to alter or amend the BAP’s
judgment, arguing that the time to file an appeal with the BAP was not jurisdictional,
that Rule 9023 is a claim-processing rule and the Bank had forfeited any objection to
the timeliness of his Rule 9023 motion, and that the BAP should not have considered
the timeliness of that motion sua sponte. The BAP denied the motion for rehearing.
This appeal followed.
III. Discussion
Mr. Robertson raises three issues on appeal, which we address in the following
order: (1) whether a Rule 9023 motion is deemed filed when mailed, so that his
Rule 9023 motion was timely filed; (2) whether this circuit’s law that Rule
8002(a)(1)’s time limit for filing a notice of appeal from a bankruptcy court’s
judgment is jurisdictional remains good after intervening Supreme Court decisions;
and (3) whether Rule 9023’s 14-day timeliness requirement is a claim-processing rule
that the Bank waived, so the untimely Rule 9023 motion was effective in tolling the
appeal period. The third issue has a related concern: whether it was proper for the
BAP to raise the timeliness of the Rule 9023 motion sua sponte as a predicate to
determining its jurisdiction.
The issues on appeal concern matters of law or “mixed questions consisting
primarily of legal conclusions drawn from the facts,” so our review is de novo.
Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir. 1997). We afford
5 a liberal construction to Mr. Robertson’s pro se filings, but we do not act as his
advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
A. A Rule 9023 motion is filed when the court receives it
We first address whether Mr. Robertson’s Rule 9023 motion was timely filed.
If it was, then it tolled the appeal period, his notice of appeal to the BAP was timely,
and we would not have to address any other issues in this appeal. We conclude,
however, that the motion was not timely filed.
Mr. Robertson argues that his motion should be treated as filed on April 13,
2017, the fourteenth day after entry of judgment, because he placed it in the United
States mail that day, postage prepaid. He contends that the Federal Rules of
Bankruptcy Procedure do not define when “filing” occurs, but he advocates for
defining that moment by reference to Supreme Court Rule 29.2, which allows the
date of filing to be the date of mailing provided certain requirements are satisfied.1
We disagree with Mr. Robertson’s premise that no federal bankruptcy rule
defines when filing occurs. Therefore, we need not consider whether Supreme Court
Rule 29.2 should apply. As noted, a Rule 9023 motion must be “filed . . . no later
than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023 (emphasis added). In
adversary proceedings, such as we have here, the filing of papers is governed by
1 In relevant part, Supreme Court Rule 29.2 provides: “A document is timely filed if it is received by the Clerk within the time specified for filing; or if it is sent to the Clerk through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing . . . .” 6 Federal Rule of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (“Rule 5 F.R.Civ.P.
applies in adversary proceedings.”). And under Civil Rule 5, “[a] paper not filed
electronically”—like Mr. Robertson’s Rule 9023 motion—“is filed by delivering it
. . . to the clerk” or “to a judge who agrees to accept it for filing.” Fed. R. Civ.
P. 5(d)(2) (emphasis added). Delivery, and hence filing, requires receipt by the clerk
or a judge. See United States v. Lombardo, 241 U.S. 73, 76 (1916) (“Filing, it must
be observed, is not complete until the document is delivered and received.”); In re
Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974) (“[M]ailing alone does not
constitute filing[.] . . . [F]iling requires delivery and receipt by the proper party.”
(citations omitted)); Kahler-Ellis Co. v. Ohio Tpk. Comm’n, 225 F.2d 922, 922
(6th Cir. 1955) (depositing a document in the mail “is not a filing; only when the
clerk acquires custody has [a document] been filed” (citations omitted)).
Mr. Robertson does not argue that the clerk or a judge received his Rule 9023
motion on April 13, 2017, but only that he mailed it on that date. Consequently, the
motion was untimely.2
2 The Bank has not cited Rule 7005 or its incorporation of Civil Rule 5, and the BAP approached this issue by analyzing the meaning of the word “filed” in Federal Rule of Bankruptcy Procedure 5005(a)(1), which provides that “motions . . . required to be filed by these rules, except as provided in 28 U.S.C. § 1409 [concerning venue in Chapter 11 proceedings], shall be filed with the clerk in the district where the case under the Code is pending.” Even if Bankruptcy Rule 5005 controls, we would reach the same conclusion—that mailing is not equivalent to filing. 7 B. Rule 8002(a)(1)’s time limit is jurisdictional
We next consider Mr. Robertson’s argument that Rule 8002(a)(1)’s 14-day
time limit for filing a notice of appeal from a bankruptcy court’s ruling is not
jurisdictional but a claim-processing rule. The distinction matters because if a time
limit for filing a notice of appeal is “jurisdictional,” then “late filing of the appeal
notice necessitates dismissal of the appeal”; but if it is “a mandatory
claim-processing rule,” it is “subject to forfeiture if not properly raised by the
[opposing party].” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13,
16 (2017). For the following reasons, we reject Mr. Robertson’s argument.
We considered Rule 8002(a) in Deyhimy v. Rupp (In re Herwit), 970 F.2d 709,
710 (10th Cir. 1992), holding that the “failure to file a timely notice of appeal [is] a
jurisdictional defect barring appellate review.” In Emann v. Latture (In re Latture),
605 F.3d 830 (10th Cir. 2010), we reaffirmed our holding in In re Herwit after
considering the Supreme Court’s intervening jurisprudence concerning the distinction
between time limits that are non-waivable jurisdictional requirements and those that
are waivable claim-processing rules. See id. at 832–37.3 Consistent with that
intervening jurisprudence, we considered whether Congress had “‘rank[ed] [the]
statutory limitation . . . as jurisdictional,’” id. at 834 (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 516 (2006)), and the “‘context, including [the Supreme] Court’s
3 Just prior to our decision in In re Latture, the BAP conducted a similar analysis and reached the same conclusion that Rule 8002(a)(1) is jurisdictional. See Hatch Jacobs, LLC v. Kingsley Capital, Inc. (In re Kingsley Capital, Inc.), 423 B.R. 344, 347–51 (B.A.P. 10th Cir. 2010). 8 interpretation of similar provisions in many years past,’” to determine whether
Rule 8002(a)(1)’s 14-day time limit is “‘jurisdictional,’” id. at 835 (quoting Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010)). We discussed several factors
indicating that Rule 8002(a)(1)’s 14-day time limit is a jurisdictional time
prescription, not a waivable or forfeitable claim-processing rule:
First, we noted that in 28 U.S.C. § 158(c)(2), Congress had “explicitly
included a timeliness condition” for taking appeals—“that a notice of appeal be filed
within the time provided by Rule 8002(a).” In re Latture, 605 F.3d at 837.
Second, we noted that this “timeliness requirement . . . is located in the same
section granting the district courts and bankruptcy appellate panels jurisdiction to
hear appeals from bankruptcy courts—Section 158(a)-(b).” Id.
And third, we observed that in Bowles v. Russell, 551 U.S. 205 (2007), the
Supreme Court had noted that “time limits for filing a notice of appeal have been
treated as jurisdictional in American law for well over a century.” Id. at 210 n.2.
Although Bowles concerned a civil appeal rather than a bankruptcy appeal, we did
not “believe [that] distinction makes a difference” because “the Advisory Committee
Notes accompanying Rule 8002(a) state that the rule is an adaptation” of the same
rule the Court addressed in Bowles, Federal Rule of Appellate Procedure 4(a), In re
Latture, 605 F.3d at 837 (internal quotation marks omitted), and Bowles and Reed
Elsevier instruct that we must “look at the [Supreme] Court’s ‘interpretation of
similar provisions,’” id. (quoting Reed Elsevier, Inc., 559 U.S. at 168). We also
noted that historically, all circuits had treated Rule 8002(a)(1)’s time limit as
9 jurisdictional prior to Kontrick v. Ryan, 540 U.S. 443 (2004), which launched the
Supreme Court’s recent series of decisions analyzing whether time limits and other
conditions in statutes and rules are jurisdictional. In re Latture, 605 F.3d at 837.
Mr. Robertson claims that In re Latture was wrongly decided and should be
overturned (1) because we misapplied the Supreme Court decisions we discussed in
In re Latture and (2) in light of decisions the Supreme Court has issued since In re
Latture that involved or discussed appeals from or to courts that, like bankruptcy
courts and the BAP, are Article I courts, not Article III courts. But this panel is
“bound by the precedent of prior panels absent en banc reconsideration or a
superseding contrary decision by the Supreme Court.” United States v. Meyers,
200 F.3d 715, 720 (10th Cir. 2000) (emphasis added) (internal quotation marks
omitted). Therefore, in determining what is binding precedent from this court, we
will consider only Supreme Court decisions issued after In re Latture that
Mr. Robertson cites in his opening brief and that are substantively relevant to his
“Article I” argument.4 We discern two such cases: Hamer v. Neighborhood Housing
4 In addition to his “Article I” argument, Mr. Robertson suggests that In re Latture is in tension with Federal Rule of Bankruptcy Procedure 9030. Aplt. Opening Br. at 10–11. Rule 9030 reads: “These rules shall not be construed to extend or limit the jurisdiction of the courts or the venue of any matters therein.” We rejected this argument in In re Latture, 605 F.3d at 837, holding that § 158(c)(2) determined the timeliness component of jurisdiction over appeals from bankruptcy courts “by incorporating the time limits prescribed in Rule 8002(a).” None of the later Supreme Court decisions Mr. Robertson cites in his opening brief bear on that conclusion. Accordingly, this panel will not reconsider the point. Meyers, 200 F.3d at 720.
10 Services of Chicago, 138 S. Ct. 13 (2017), and Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428 (2011) (Henderson).5 Neither one requires us to overturn In
re Latture.
In Hamer, the Supreme Court held that Federal Rule of Appellate Procedure
4(a)(5)(C)’s 30-day time limit on the length of an extension of time to file a notice of
appeal in a civil case is a nonjurisdictional claim-processing rule. 138 S. Ct. at 21.
Facially, that holding has no application here. But Mr. Robertson directs our
attention to the following statement in Hamer: “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[.]” Id. at 20 (emphasis added) (citation omitted). Mr. Robertson
claims the reference to an “Article III court” means that only timeliness prescriptions
concerning “appeals from one Article III court to another are jurisdictional,” Aplt.
5 In his opening brief, Mr. Robertson also relies on Sebelius v. Auburn Regional Medical Center, 568 U.S. 145 (2013), in support of his “Article I” argument. The time limits at issue in Sebelius, however, did not involve any federal courts but the time to appeal from a Medicare reimbursement determination by “[g]overnment contractors, called fiscal intermediaries, . . . to an administrative body named the Provider Reimbursement Review Board.” Id. at 821. Sebelius is therefore not germane to Mr. Robertson’s “Article I” argument. Consequently, we will discuss it no further. In his reply brief, Mr. Robertson relies on another recent case, Patchak v. Zinke, 138 S. Ct. 897 (2018), in support of his “Article I” argument. But that reliance comes too late. Patchak was decided before Mr. Robertson filed his opening brief, but he waited until his reply brief to cite it. We ordinarily do not consider matters raised for the first time in a reply brief, including arguments that might support a court’s jurisdiction. McKenzie v. U.S. Citizenship and Immigration Servs., 761 F.3d 1149, 1154–55 (10th Cir. 2014). We decline to do so here. 11 Opening Br. at 14, and therefore “appeals from Article I Bankruptcy courts fit into
the claim processing category,” id. at 11. He posits that Rule 8002(a)(1) sets the time
limit to appeal from one Article I court (a federal bankruptcy court) to another (the
BAP) and is therefore nonjurisdictional under Hamer.
We disagree. Nothing in Hamer indicates that the Court’s analysis turned on
the constitutional basis for a federal court’s jurisdiction. Instead, the Court’s
rationale was that the 30-day time limit, which purported to apply “in all
circumstances,” was set forth only in Appellate Rule 4(a)(5)(C), whereas the relevant
statute, 28 U.S.C. § 2107(c), set a shorter time limit (14 days) on the length of an
extension only in cases where “the prospective appellant lacked notice of the entry of
judgment.” Hamer, 138 S. Ct. at 19 (emphasis omitted). Nor does Hamer stand for
the proposition that a timeliness prescription for taking an appeal from or to an
Article I court is per se a claim-processing rule. To the contrary, Hamer cited
examples of “cases not involving the timebound transfer of adjudicatory authority
from one Article III court to another” where the Court had “additionally applied a
clear-statement rule.” Id. at 20 n.9. The Court then explained that the rule requires
consideration of “context” and the “Court’s interpretations of similar provisions in
many years past” when determining if Congress provided a clear statement that a
particular provision was intended to be jurisdictional. Id. (internal quotation marks
omitted). That explanation confirms In re Latture’s analytical course, which
included consideration of context and precedent in determining whether Congress has
“rank[ed]” a time limit as jurisdictional. In re Latture, 605 F.3d at 834.
12 For these reasons, nothing in Hamer causes us to question the analysis or
result in In re Latture on the basis that time limits for filing notices of appeal from or
to Article I courts are nonjurisdictional claim-processing rules. Other courts have
agreed. See Wilkins v. Menchaca (In re Wilkins), 587 B.R. 97, 105 (B.A.P. 9th Cir.
2018) (“[T]here is nothing in Hamer that gives us a reason to reexamine the Ninth
Circuit’s longstanding construction of the time deadline in Rule 8002(a)” as
jurisdictional.); In re Jackson, 585 B.R. 410, 412, 415–16, 420–21 (B.A.P. 6th Cir.
2018) (considering Hamer and concluding that § 158(c)(2)’s time requirement, as
implemented by Rule 8002(a)(1), is jurisdictional).
Henderson is even further afield than Hamer. In Henderson, the Supreme
Court held that a statutory 120-day deadline for filing a notice of appeal from a
decision by the Board of Veterans’ Appeals to the United States Court of Appeals for
Veterans Claims was not jurisdictional. 562 U.S. at 431. After noting that none of
its precedents, including Bowles, controlled the outcome because the case involved
“review by an Article I tribunal as part of a unique administrative scheme,” the Court
considered several factors bearing on congressional intent. Id. at 437–38. And it was
those factors—not the Article I nature of the reviewing court—that informed the
result. For our purposes, the most significant of those other factors are (1) the
absence of jurisdictional terms in the statute at issue and (2) the numerous differences
between “ordinary civil litigation” that “provided the context of [the Court’s]
decision in Bowles,” and the “informal and nonadversarial” nature of “the system
Congress that created for the adjudication of veterans’ benefits claims,” id. at 440.
13 In contrast, § 158(c)(2) does speak in jurisdictional terms, as discussed in In re
Latture, 605 F.3d at 837. Furthermore, § 158(c)(2) directs that appeals from
bankruptcy courts “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.” The Henderson Court found that similar statutory language
clearly signals an intent that a time limit should be treated as jurisdictional. 562 U.S.
at 438–39.6 And bankruptcy proceedings have much more in common with
adversarial civil litigation than with the nonadversarial scheme discussed in
Henderson. See Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015) (“A
bankruptcy case involves an aggregation of individual controversies, many of which
would exist as stand-alone lawsuits but for the bankrupt status of the debtor.”
(internal quotation marks omitted)); In re Grasso, 519 B.R. 137, 140 (Bankr. E.D. Pa.
2014) (“The adversarial nature of bankruptcy proceedings presumes the participation
of creditors will be driven by their self-interest and not the expectation of
6 Mr. Robertson claims the word “generally” in § 158(c)(2), read in conjunction with 28 U.S.C. § 2107(d)’s statement that § 2107, which sets the time for taking appeals in civil proceedings, “shall not apply to bankruptcy matters or other proceedings under Title 11,” indicates that Congress was delegating to the Supreme Court the authority to set how and when appeals are taken from bankruptcy courts. In further support, he notes that in 2009, the Supreme Court, which promulgates the Federal Rules of Bankruptcy Procedure, extended Rule 8002(a)’s original 10-day limit to 14 days. But this argument does not depend on or derive solely from any Supreme Court decision issued after In re Latture; Mr. Robertson cites only Henderson and only for its definition of claim-processing rules. See Aplt. Opening Br. at 9. So even if this were a meritorious argument (and we expressly disavow any suggestion that it is), it could not serve as a basis for overturning In re Latture absent en banc reconsideration or a superseding Supreme Court decision. Meyers, 200 F.3d at 720. We therefore decline to discuss it further. 14 payment.”); see also Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 457
(2004) (Scalia, J., dissenting) (“The similarities between adversary proceedings in
bankruptcy and federal civil litigation are striking.”).
In sum, neither Hamer nor Henderson causes us to question the analysis or
result in In re Latture. We therefore reject Mr. Robertson’s invitation to overturn In
re Latture and instead reaffirm that Rule 8002(a)(1)’s time limit is jurisdictional.
C. Late-filed Rule 9023 motion did not toll the appeal period
As noted, Bankruptcy Rule 8002(b)(1) extends or tolls Rule 8002(a)(1)’s
14-day time period for filing a notice of appeal when certain motions, including a
Rule 9023 motion, are timely filed, and a Rule 9023 motion must be filed “no later
than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. Mr. Robertson argues
that Rule 9023’s time limit is a claim-processing rule and therefore subject to waiver
and forfeiture. He notes that the Bank did not contest whether his Rule 9023 motion
was timely, either in the bankruptcy court or in merits briefing before the BAP, and
that the bankruptcy court denied it on the merits. He further argues that while the
bankruptcy court was entertaining the motion, there was no final judgment to appeal.
Therefore, he posits, it was error for the BAP to consider timeliness of the Rule 9023
motion sua sponte and dismiss his appeal for lack of jurisdiction.
The Bank does not argue that Rule 9023’s time limit is jurisdictional but urges
that an untimely Rule 9023 motion cannot toll the time to file a notice of appeal even
if the opposing party does not raise a timeliness objection to the bankruptcy court’s
consideration of the motion, and even if the bankruptcy court disposes of the motion
15 on the merits. For reasons that follow, we conclude that Rule 9023’s time limit is a
claim-processing rule, but an untimely Rule 9023 motion is ineffective to toll the
time to appeal under Rule 8002(b)(1)(B) even if an opposing party does not object
and the bankruptcy court disposes of it on the merits, and the BAP can, sua sponte,
raise the timeliness of a Rule 9023 motion for purposes of determining its
jurisdiction.
1. Rule 9023’s time limit is a claim-processing rule
Rule 9023’s time limit appears to be a claim-processing rule; the Bank has not
suggested it has any statutory basis, and we are aware of none. See United States v.
Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (explaining that “Bowles . . . clarified
that court-issued federal procedural rules not derived from statutes are not
jurisdictional, but rather inflexible claim-processing rules”). But the parties have not
cited any judicial decision directly on point, and the only case we have uncovered is
Dixon-Ross v. Hartwell (In re Dixon-Ross), No. 14-18608, 2016 WL 1056776, at *2–
3 (E.D. Pa. Mar. 17, 2016) (unpublished), where the court compared Rule 9023 to
Federal Rule of Civil Procedure 59(e) and held that the debtor forfeited a defense of
untimeliness to the bankruptcy court’s consideration of an untimely Rule 9023
motion by not raising that defense in a timely manner. We agree.
Analogizing from Rule 59(e) is proper because (1) Rule 9023 expressly states
that, subject to exceptions not relevant here, “Rule 59 . . . applies in cases under the
[Bankruptcy] Code,” Fed. R. Bankr. P. 9023; and (2) like Rule 9023, Rule 59(e)
16 concerns the time limit (28 days) for filing a motion to alter or amend a judgment.7
And all circuits that have considered the nature of Rule 59(e) in the wake of
Kontrick, Eberhart, and Bowles have held that it is a claim-processing rule because it
is untethered to any jurisdictional statute. See Suber v. Lowes Home Ctrs., Inc.,
609 F. App’x 615, 616 (11th Cir. 2015) (per curiam) (“Th[e] time limit for filing a
Rule 59(e) motion is a claims-processing rule, not a jurisdictional rule, because it is
not grounded in a statutory requirement.” (internal quotation marks omitted)); Blue v.
Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 584 (7th Cir. 2012)
(concluding that Rule 59(e) is a “non-jurisdictional procedural rule[]” because it was
“promulgated by the Supreme Court under the Rules Enabling Act, 28 U.S.C.
§§ 2071–2077, and therefore ‘do[es] not create or withdraw federal jurisdiction’”
(quoting Kontrick, 540 U.S. at 453)); Lizardo v. United States, 619 F.3d 273, 277
(3d Cir. 2010) (same); Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 475
(6th Cir. 2007) (same); First Ave. W. Bldg., LLC v. James (In re Onecast Media,
Inc.), 439 F.3d 558, 562 (9th Cir. 2006) (concluding that “Rule 59 is . . . a
claim-processing rule”); cf. Wilburn v. Robinson, 480 F.3d 1140, 1146 n.11 (D.C.
7 The exceptions in Rule 9023 are found in (1) the rule itself, which provides that, in contrast to Rule 59(e)’s 28-day time limit, a Rule 9023 motion must be filed “no later than 14 days after entry of judgment,” Fed. R. Bankr. P. 9023; and (2) Bankruptcy Rule 3008, which concerns motions for “reconsideration of an order allowing or disallowing a claim against the estate,” Fed. R. Bankr. P. 3008. Neither exception is relevant to whether we may analogize from case law regarding Civil Rule 59(e) to determine if Rule 9023’s time limit is jurisdictional.
17 Cir. 2007) (rejecting dissent’s argument that Rule 60(b) is jurisdictional because
parallel Rule 59(e) is jurisdictional).8
The reasoning of In re Dixon-Ross and our sister circuits with respect to Civil
Rule 59(e) persuades us that Rule 9023 is a claim-processing rule, and a party can
waive or forfeit a timeliness objection to the bankruptcy court’s consideration of a
Rule 9023 motion filed more than 14 days after entry of judgment. In this case, the
Bank forfeited such an objection. But this does not resolve the more difficult
question: Whether either an opposing party’s waiver or forfeiture of an untimeliness
8 In Watson v. Ward, 404 F.3d 1230, 1231 (10th Cir. 2005), this court granted a certificate of appealability on “[w]hether the district court had jurisdiction to grant Respondent’s Rule 59 motion to alter or amend judgment,” which had been filed well after what was then a 10-day time limit. We observed that “[w]ith admirable candor, Respondents concede that the district court lacked jurisdiction.” Id. We then rejected an invitation to uphold the district court’s ruling on the motion by treating it as if it was entered pursuant to Rule 60(b). Id. at 1232. But we provided little analysis of the jurisdictional issue, instead relying on (1) the appellees’ concession that the district court lacked jurisdiction over an untimely Rule 59(e) motion, and (2) Brock v. Citizens Bank of Clovis, 841 F.2d 344 (10th Cir. 1988), which predated Kontrick and stated in summary fashion that a district court had “correctly denied relief on jurisdictional grounds” when it denied a Rule 59(e) motion as untimely, id. at 347–48. See Watson, 404 F.3d at 1231. And although Watson post-dates Kontrick, which acknowledged the distinction between jurisdictional and claim-processing provisions, it did not discuss Kontrick. Further, two panels of this court and one panel of the Tenth Circuit BAP have cited Watson in noting we have not yet decided if Rule 59(e) is jurisdictional or a claim-processing rule in light of Kontrick and its progeny. See Martinez v. Carson, 697 F.3d 1252, 1258 n.1 (10th Cir. 2012); Sky Harbor Air Serv., Inc. v. Reams, 491 F. App’x 875, 891 n.17 (10th Cir. 2012); Onyeabor v. Centennial Pointe Prop. Owners’ Assoc. (In re Onyeabor), BAP No. UT-14-047, 2015 WL 1726692, at *6 n.60 (B.A.P. 10th Cir. Apr. 15, 2015). None of those three cases decided the issue either. We therefore decline to base our analysis of Rule 9023 on Watson’s suggestion that a district court lacks jurisdiction to grant an untimely Rule 59 motion.
18 argument in the bankruptcy court, or the bankruptcy court’s denial of a Rule 9023
motion on the merits, rather than for untimeliness, means the untimely Rule 9023
motion can, under Rule 8002(b)(1)(B), toll the appeal period and hence render timely
an otherwise untimely notice of appeal. We now turn to that question.
2. An untimely Rule 9023 motion does not toll the appeal period
The parties cite no judicial decision resolving whether an untimely Rule 9023
motion can, under Rule 8002(b)(1)(B), toll the time period in which to file a notice of
appeal to the BAP or a district court, and we have found none.9 We therefore must
resort to analogous tolling rules.
a. Analogous tolling rules
Two procedural rules serve as proper analogues: Federal Rules of Appellate
Procedure 4(a)(4)(A) and 6(b)(2)(A)(i).
Rule 4(a)(4)(A) provides for tolling the jurisdictional time limit for filing a
notice of appeal from a district court to a circuit court found in 28 U.S.C. § 2107: “If
a party files in the district court any of the following motions under the Federal Rules
of Civil Procedure—and does so within the time allowed by those rules—the time to
file an appeal runs for all parties from the entry of the order disposing of the last such
remaining motion.” Rule 59(e) motions are among the tolling motions listed in
9 Although In re Dixon-Ross held that a court has appellate “jurisdiction to review a timely appealed order disposing of an untimely motion for reconsideration,” 2016 WL 1056776, at *3 (internal quotation marks omitted), there is no indication that the notice of appeal in that case was untimely and no mention of Rule 8002(b)(1)(B). 19 Rule 4(a)(4)(A), see Fed. R. App. P. 4(a)(4)(A)(iv), and those “must be filed no later
than 28 days after the entry of the judgment,” Fed. R. Civ. P. 59(e). As an Advisory
Committee’s note states, Rule 8002 “is an adaptation of [Appellate] Rule 4(a),” and
Rule 8002(b) “is essentially the same as [Appellate] Rule 4(a)(4).” Fed. R. Bankr.
P. 8002 advisory committee’s note.
Similarly, Appellate Rule 6(b)(2)(A)(i) provides for tolling the jurisdictional
time limit to file a notice of appeal to a circuit court from a decision by a BAP or a
district court exercising appellate jurisdiction in a bankruptcy case:10 “If a timely
motion for rehearing under Bankruptcy Rule 8022 is filed, the time to appeal for all
parties runs from the entry of the order disposing of the motion.” Fed. R. App.
P. 6(b)(2)(A)(i). Similar to time limits found in Civil Rule 59(e) and Bankruptcy
Rule 9023, Bankruptcy Rule 8022(a)(1) has a time limit (14 days) for filing a motion
for rehearing before a BAP or district court sitting in its appellate capacity, and
Rule 8022(a)(1) is a nonjurisdictional claim-processing rule, see Tal v. Harth (In re
Harth), 619 F. App’x 719, 721 (10th Cir. 2015) (recognizing the BAP’s “authority to
overlook the untimeliness of a [Rule 8022] motion for rehearing on equitable
grounds”).11
10 This time limit is jurisdictional. See Taumoepeau v. Mfrs. & Traders Tr. Co. (In re Taumoepeau), 523 F.3d 1213, 1216 & n.1 (10th Cir. 2008) (jurisdictional timeliness requirement under § 2107 and Appellate Rule 4(a)(1) is applicable to bankruptcy appeals to circuit courts by virtue of Appellate Rule 6(b)(1) and Advisory Committee notes to Bankruptcy Rule 8001). 11 We cite unpublished decisions only for their persuasive value consistent with 10th Cir. R. 32.1(A). 20 b. Case law
Having established the relevant analogue rules, we turn to case law
interpreting them. We start with Browder v. Director, Department of Corrections,
where the Supreme Court held that an untimely post-judgment motion filed under
either Civil Rule 52(b) or Rule 59 “could not toll the running of time to appeal under
Rule 4(a)” and therefore the circuit court “lacked jurisdiction to review the
[underlying order granting habeas relief].” 434 U.S. 257, 265 (1978). Before the
district court, the opposing party had objected on timeliness grounds to the court’s
consideration of the motion, but that fact appears to have played no role in the
Supreme Court’s decision. Instead, the Court relied on what Bowles later
confirmed—that § 2107(a)’s 30-day time limit for filing a notice of appeal in a civil
case is “jurisdictional,” id. at 264 (internal quotation marks omitted)—and on
Rule 4(a)(4)(A)’s purpose, which is “to set a definite point of time when litigation
shall be at an end, unless within that time the prescribed application has been made;
and if it has not, to advise prospective appellees that they are freed of the appellant’s
demands,” id. (internal quotation marks omitted).
We next consider Chief Judge Sentelle’s dissenting opinion in Obaydullah v.
Obama, 688 F.3d 784 (D.C. Cir. 2012) (per curiam), and opinions from the First,
Third, Fourth, Fifth, Seventh, and Eleventh Circuits, almost all of which post-date
Bowles and follow Browder. These decisions further develop the rationale for the
rule that untimely post-judgment motions cannot toll the period in which to file a
21 notice of appeal even where an opposing party does not object on timeliness grounds
or the district court disposes of the motion on the merits.
In Obaydullah, the government did not oppose the district court’s
consideration of an untimely Rule 59(e) motion, which the court granted. Were it not
for the tolling effect of that motion, Obaydullah’s notice of appeal would have been
untimely to appeal the underlying judgment. In determining that the untimely motion
tolled the appeal period, the majority relied on circuit precedent to conclude that
Rule 4(a)(4)(A)’s tolling provision for Rule 59(e) motions is a claim-processing rule,
id. at 789, and therefore “the . . . waiver of any timeliness objection” to an untimely
Rule 59(e) motion permits a court to consider an appeal from the underlying
judgment, id. at 791. But in what we consider a persuasive dissent, Chief Judge
Sentelle argued that “Bowles and Browder . . . should govern [the] case,” id. at 800,
pointing out that Bowles (1) “clarified that Browder . . . is good law,” (2) “cited
Browder’s treatment of time limits with approval,” and (3) “explained that [the
Court’s] recent negative treatment of Robinson[12] and other cases, such as Browder,
that relied on Robinson for the proposition that the time limit set for a notice of
appeal is jurisdictional, was ‘dicta,’” id. at 799 (quoting Bowles, 551 U.S. at 210 n.2).
Judge Sentelle also likened allowing an untimely (and unobjected-to) Rule 59(e)
motion to toll a jurisdictional appeal period to the “unique circumstances” doctrine
12 United States v. Robinson, 361 U.S. 220 (1960). 22 the Supreme Court jettisoned in Bowles. See id. at 800 (internal quotation marks
omitted).
We also find the Third Circuit’s decision in Lizardo v. United States, 619 F.3d
273 (3d Cir. 2010), persuasive and instructive. In Lizardo, the government failed to
object to a Rule 59(e) motion as untimely, and the district court denied it. The Third
Circuit held that because Rule 59(e) is a claim-processing rule, the government had
forfeited any timeliness objection it could have made in the district court, but it did
not forfeit its objection for purposes of Rule 4(a)(4)(A). Relying primarily on
Browder, the court held that “[a]n untimely Rule 59(e) motion does not toll the time
for filing an appeal under Rule 4(a)(4)(A). This is true even if the party opposing the
motion did not object to the motion’s untimeliness and the district court considered
the motion on the merits.” Id. at 278. The court reasoned that “Rule 4’s main
purpose is ‘to set a definite point of time when litigation shall be at an end,’” id.
at 279 (quoting Browder, 434 U.S. at 264), and “[h]olding that an untimely
Rule 59(e) motion is timely for purposes of Rule 4(a)(4)(A) by virtue of the opposing
party’s failure to object to that untimeliness in the district court would accomplish
the opposite result,” id. at 280.
In reaching the conclusion that untimely post-judgment motions cannot toll the
period for filing a notice of appeal, the Fifth and Seventh Circuits have followed,
inter alia, Browder and Lizardo. See Overstreet v. Joint Facilities Mgmt., L.L.C.
(In re Crescent Res., L.L.C.), 496 F. App’x 421, 424 (5th Cir. 2012) (per curiam)
(holding that an untimely Rule 59(e) motion “will not toll the notice of appeal period,
23 even if the district court addressed the late-filed motion on the merits”); Blue v. Int’l
Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 582–85 (7th Cir. 2012)
(concluding that, where opposing party had not objected to an impermissible
extension of the deadline to file a post-trial motion, the district court had jurisdiction
to hear those motions but they “did not toll the time [appellant] had to file its Notice
of Appeal”). And in decisions pre-dating Lizardo, the First and Fourth Circuits have
followed Browder. See Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d
6, 8–11 (1st Cir. 2004) (concluding that under Browder, an untimely Rule 59(e)
motion did not toll the appeal period even though the district court had denied it on
the merits); Panhorst v. United States, 241 F.3d 367, 369–70 (4th Cir. 2001) (relying
on Browder to hold that “[a]n untimely Rule 59(e) motion does not defer the time for
filing an appeal, which continues to run from the entry of the initial judgment order,”
where district court had granted motion to consider untimely Rule 59(e) motion then
denied that motion). In another pre-Lizardo case, the Eleventh Circuit also reached
the same conclusion, albeit without reliance on Browder. See Green v. Drug Enf’t
Admin., 606 F.3d 1296, 1302 (11th Cir. 2010) (holding that “Appellate
Rule 4(a)(4)(A) requires [post-judgment] motions be timely to toll the period for
filing a notice of appeal,” and explaining that “[a]lthough Kontrick and Eberhart
suggest that a district court has jurisdiction to hear an out-of-time Rule 59(e) motion
if the non-moving party does not object promptly enough (and thus forfeits his ability
to object to timeliness later), neither case would turn an untimely Rule 59(e) motion
into a timely one” (footnote omitted)).
24 Finally, we have applied Browder in a bankruptcy case with a procedural
posture analogous to this case. In In re Harth, we concluded that an untimely motion
for rehearing by the BAP filed under Bankruptcy Rule 8022, which the BAP denied
on the merits after noting its untimeliness, did not toll the time limit to appeal to this
court under Appellate Rule 6(b)(2)(A)(i). In support, we relied on Browder,
explaining that although the BAP had “authority to overlook the untimeliness of a
motion for rehearing on equitable grounds, that is a separate matter from whether the
BAP affects our appellate jurisdiction by denying the untimely motion on the merits.”
619 F. App’x at 721 (emphasis added). We said that whether the appellant was
“entitled to tolling of the appeal period is itself a jurisdictional issue,” and under
Bowles, “courts have no authority to create equitable exceptions to jurisdictional
requirements.” Id. (brackets and internal quotation marks omitted). “We therefore
agree[d] with those circuits holding that a lower court’s discretionary election to
deny an untimely post-judgment motion on the merits (an equitable action without
jurisdictional import in that court) does not re-invest that motion with a tolling effect
for purposes of appellate jurisdiction.” Id. We consider In re Harth’s application of
Browder in the bankruptcy context to be persuasive.
The Second, Sixth, Ninth, and D.C. Circuits have concluded that an untimely
post-judgment motion can toll the appeal period under Appellate Rule 4(a)(4)(A).
See Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018) (per curiam); Weitzner
v. Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015); Obaydullah, 688 F.3d at 789;
Nat’l Ecological Found., 496 F.3d at 476. The Eighth Circuit has implied as much.
25 See Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 619 (8th Cir. 2008). However, we
are more persuaded by the contrary view expressed in Browder, Chief Judge
Sentelle’s dissent in Obaydullah, and the other circuit decisions cited above.
Accordingly, we hold that an untimely Rule 9023 motion is ineffective to toll
the time to file a notice of appeal under 28 U.S.C. § 158(c)(2) and Bankruptcy Rule
8002(a) regardless of whether the bankruptcy court disposes of the motion on the
merits or whether an opposing party raises in the bankruptcy court a timeliness
objection to that court’s consideration of the motion. In the latter situation, holding
otherwise would allow an opposing party’s failure to raise a timeliness objection to
expand the jurisdictional appeal period, and that would violate the tenet that “a
court’s subject-matter jurisdiction cannot be expanded to account for the parties’
litigation conduct.” Kontrick, 540 U.S. at 456; see Bowles, 551 U.S. at 213
(explaining that where an “error is one of jurisdictional magnitude, [a litigant] cannot
rely on forfeiture or waiver to excuse his lack of compliance with [a] statute’s time
limitations [for filing a notice of appeal]”).
3. BAP had authority to consider, sua sponte, Rule 9023 motion’s timeliness
Mr. Robertson complains that the BAP should not have considered the
timeliness of his Rule 9023 motion sua sponte. But given our reaffirmance that
Rule 8002(a)(1)’s time limit is jurisdictional, we conclude that the BAP had authority
to consider sua sponte whether Mr. Robertson’s Rule 9023 motion was timely filed
for purposes of determining whether the BAP had jurisdiction over his appeal. See
26 Henderson, 562 U.S. at 434 (“[F]ederal courts have an independent obligation to
ensure that they do not exceed the scope of their jurisdiction, and therefore they must
raise and decide jurisdictional questions that the parties either overlook or elect not to
press.”)
IV. Attorney fees
Included with its appellate brief, the Bank summarily requests “attorneys’ fees
on appeal pursuant to the final orders and judgments made by the Bankruptcy Court,
the Utah State District Court and the Utah Court of Appeals based upon the loan
documents entered into between the Bank and [Mr.] Robertson.” Aplee. Resp.
Br. at 53–54. The statute the Bank cites in support of its request authorizes a court to
award attorney fees to the prevailing party “in a civil action based upon any
promissory note, written contract, or other writing executed after April 28, 1986,
when the provisions of the promissory note, written contract, or other writing allow
at least one party to recover attorney fees.” Utah Code Ann. § 78B-5-826.
We deny the request without prejudice to the Bank filing a proper motion that
complies with applicable procedural rules, including 10th Cir. R. 27 and 39.2, and
that sets out more fully the legal basis for an award for attorney fees. At a minimum,
any such motion should (1) identify the “promissory note[s], written contract[s], or
other writing[s] allow[ing] at least one party to recover attorney fees,” Utah Code
Ann. § 78B-5-826; (2) discuss whether an appeal from a BAP decision regarding an
adversary proceeding is “a civil action” within the meaning of § 78B-5-826 and, if
so, whether excepting from discharge a deficiency judgment in an adversary
27 proceeding means that the adversary proceeding is “based upon” the relevant
“promissory note, written contract, or other writing,” id.; and (3) identify any other
Utah statutory or case law bearing on the Bank’s entitlement to attorney fees in this
appeal, see, e.g., Mgmt. Servs. Corp. v. Dev. Assocs., 617 P.2d 406, 409 (Utah 1980)
(holding “that a provision for payment of attorney’s fees in a contract includes
attorney’s fees incurred by the prevailing party on appeal as well as at trial, if the
action is brought to enforce the contract” (emphasis added)).
V. Conclusion
We affirm the BAP’s judgment dismissing Mr. Robertson’s appeal for lack of
jurisdiction. We deny the Bank’s request for attorney fees on appeal without
prejudice to the Bank filing a proper motion for attorney fees.
Entered for the Court
Jerome A. Holmes Circuit Judge