Document Type

Article

Abstract

Prior to the amendments enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), a decision of a federal bankruptcy judge could be appealed in one of two ways. First, a litigant could appeal a final judgment, order or decree (and certain interlocutory orders and decrees) to the district court for the judicial district in which the bankruptcy judge sits. Second, if the judicial council of the circuit in which the bankruptcy judge was serving had established a bankruptcy appellate panel (BAP) under 28 U.S.C. § 158(6)(1), and the district judges for the district in which the bankruptcy judge was located had authorized the bankruptcy appellate panels in the circuit to hear and determine appeals from that district, the litigant could take an appeal to a bankruptcy appellate panel unless either the appellant or the other party elected to have the appeal heard by the district court. The losing party could appeal all final decisions, judgments, orders and decrees entered by a district court or bankruptcy appellate panel to the court of appeals for the applicable circuit. The BAPCPA amendments added a new provision, 28 U.S.C. § 158(d)2), which provides the court of appeals with jurisdiction over direct appeals from the bankruptcy court under certain circumstances. In this article I will look at the background of the new § 158(d)2), the statutory language included in BAPCPA, and the circuits and cases in which courts have made use (or declined to make use) of the new direct appeal option. I conclude that the new direct appeal process is being used for the purposes in, tended by those who advocated for its adoption, but that in the vast majority of those cases in which it is invoked the direct appeal is necessary because of the ambiguities created by the very statute in which the amendment was made, BAPCPA.

Disciplines

Bankruptcy Law

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