Doing the Splits From Settled to Unsettled Law - The Jurisdictional Effect ( or Not ) of the Failure to File a Timely Appeal
Annette W . Jarvis , Greenberg Traurig , LLP Secretary , American College of Bankruptcy
In law school , most of us were taught that the failure to timely appeal deprives the appellate court of jurisdiction to hear the appeal . However , in bankruptcy appeals , the Supreme Court ’ s decision in Arbaugh v . Y & H Corp ., 546 U . S . 500 ( 2006 ) has appellate courts rethinking this issue under the Bankruptcy Code and Bankruptcy Rules , resulting in a circuit split . While considering whether Arbaugh had changed the analysis of appellate court jurisdiction over late filed appeals , the Third , Fifth , Seventh , and Tenth Circuit have all held that this decision did not change the result that a late filed appeal deprived the appellate court of jurisdiction to decide the appeal , requiring a dismissal of the appeal . In re Caterbone , 640 F . 3d 108 ( 3d Cir . 2011 ); Smith v . Gartley , 737 F . 3d 997 ( 5th Cir . 2013 ); In re Sobczak-Slomczewski , 826 F . 3d 429 ( 7th Cir . 2016 ); Emanuel v . Latture , 605 F . 3d 830 ( 10th Cir . 2010 ). However , recently the Sixth Circuit created a circuit split on this issue , holding that the appellate deadline set under the Bankruptcy Rules is non-jurisdictional . Tennial v . REI Nation , LLC , 978 F . 3d 1022 ( 6th Cir . 2020 ). To understand this changing landscape , let ’ s start with understanding exactly why the reasoning in Arbaugh caused a reexamination of what was thought to be settled law .
Arbaugh involved a sexual abuse claim under Title VII brought by an employee against a former employer . The question before the Supreme Court was whether the employeenumerosity requirement of the claim , which was not challenged until after a trial on the merits , was a jurisdictional requirement that could be challenged at any time in the case . The Fifth Circuit dismissed for lack of subject matter jurisdiction , but the Supreme Court reversed and remanded the case . As explained by the Supreme Court , “[ t ] his case concerns the distinction between two sometimes confused or conflated concepts : federal-court ‘ subject-matter ’ jurisdiction over a controversy ; and the essential ingredients of a federal claim for relief .” Arbaugh , 546 U . S . at 503 . Finding the employee numerosity requirement not to be “ jurisdictional ” such that it “ does not circumscribe federal-court subject-matter jurisdiction ” but rather “ relates to the substantive adequacy of [ the ] Title VII claim ,” the Court determined that the failure to timely assert the objection prior to close of trial precluded later raising this defense . In narrowing the question of what is jurisdictional , the Supreme Court focused on requiring a finding of a Congressional statement of intent . Thus , “[ i ] f the Legislature clearly states that a threshold limitation on a statute ’ s scope shall count as jurisdictional , then courts and litigants will be duly instructed and will not be left to wrestle with the issue .” Id . at 502 . However , “ when Congress does not rank a statutory limitation continued on page 28
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