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on coverage as jurisdictional , courts should treat the restriction as nonjurisdictional in character .” Id .
In applying this carefully articulated standard to bankruptcy appeals , the focus turns on whether timely appealing from a bankruptcy court decision involves a statute which clearly states that this time limitation was intended by Congress to be jurisdictional . This statutory construction is not simple . The Tenth Circuit became the first Circuit to apply this narrower statement of statutory jurisdictional limitations to bankruptcy court appellate jurisdiction in Latture — four years after Arbaugh was decided . The bankruptcy litigation involved the non-dischargeability of a debt . The bankruptcy court found the debt to be nondischargeable on summary judgment , and the debtor filed an appeal one day late under Fed . R . Bankr . P . 8002 ( a ) and 9006 ( a ). The B . A . P . concluded that the failure to timely appeal was a jurisdictional defect and dismissed the appeal , an expected result , as the Tenth Circuit itself noted . However , the Tenth Circuit decided in light of Arbaugh and two other Supreme Court cases , Kontrick v . Ryan , 540 U . S . 443 ( 2004 ) and Eberhart v . United States , 546 U . S . 12 ( 2005 ), this expected conclusion needed to be reexamined . The issue revolved around whether 28 U . S . C . § 158 ( c )( 2 ), which , in setting the time for appeal , provides that an appeal must be filed “ in the time provided by Rule 8002 of the Bankruptcy Rules ,” is a sufficient statement of Congressional intent that the time limitation set in Rule 8002 should be interpreted as a jurisdictional limitation . If Rule 8002 cannot be tied to a congressionally-enacted statute , or , as the Tenth Circuit stated , “ has its roots in a congressionally-enacted statute ,” then
under the reasoning of Arbaugh , it cannot be a jurisdictional limitation because courts , not Congress , establish rules . Latture , 605 F . 3d at 836 . While Section 158 ( c )( 2 ) is not entirely clear , the Tenth Circuit found this congressionally-enacted requirement to be satisfied because the statute specifically referred to the time provided by Rule 8002 and the statutory section “ is located in the same section granting the district courts and bankruptcy appellate courts jurisdiction to hear appeals from bankruptcy courts .” Id . at 837 . Thus , the Tenth Circuit concluded that the Rule was linked sufficiently to the statute to demonstrate Congress ’ s intention to make the timeliness of appeals jurisdictional .
The Third , Fifth , and Seventh Circuit agreed . In Caterbone , while it was argued that “ requirements contained in a bankruptcy rule alone are not jurisdictional ” since rules are not enactments of Congress , the Third Circuit , in addressing the appeal of a motion to dismiss , found the incorporation of Rule 8002 in 28 U . S . C . § 158 to create a Congressionally enacted limitation on jurisdiction which was non-waivable and could be raised at any time , including independently by the courts . Caterbone , 640 F . 3d at 111 . In Berman-Smith , another case involving a non-dischargeability action , the Fifth Circuit noted the difference between 28 U . S . C . § 158 ( c ) and “ the thirty-day time limit to file a notice of appeal under Federal Rule of Appellate Procedure 4 ( a )( 1 )( A ) [ which ] is jurisdictional because the time limit is expressly contained in 28 U . S . C . § 2107 ( a ).” Berman-Smith , 737 F . 3d at 1001 . In reversing the district court ’ s decision that Rule 8002 was not jurisdictional , the Fifth Circuit concluded : “ We find the Tenth Circuit ’ s reasoning in In re Latture persuasive . Since the statute defining
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