By Hon. Jim D. Pappas, Chief Judge, Ninth Circuit Bankruptcy Appellate Panel
I. The Most Important Advice
The BAP has an Internet website containing extremely helpful information that is a “must read” for any attorney contemplating an appeal to the BAP (or to the district court, for that matter). The BAP’s website may be accessed through the following address: http://pacer.bap09.uscourts.gov/ (note: no “www”).
When you arrive, follow the links to all sorts of helpful information including the BAP’s Local Rules; copies of published opinions, and even unpublished memorandum decisions; oral argument calendars; and access to the BAP’s PACER site, where you can monitor the progress of all appeals. But the most helpful information you can access may be by reviewing the “Litigant’s Manual”, a “must read” outline for lawyers and litigants chock-full of substantive and procedural material, case cites, and advice on navigating a BAP appeal. Much of what follows is excerpted from the manual.
II. Dos and Don’ts for an Effective Appeal
If you want a quick list of ideas for good, and not so good, practices to implement in your appeal, consider the following collection developed over the years by the BAP judges and staff:
1. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. As a result, expect the judges to perceive and understand the issues without extended explanation. But also, expect those judges to have focused, informed questions about your case and positions that you will be expected to directly address.
2. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, the appellate court is also concerned with the overall impact of its ruling on the general body of bankruptcy law. What will be the effect in other cases in the Circuit of the BAP’s adoption of your position?
3. Clarify the standard of review and frame arguments around that standard. Remember, if the standard is whether the bankruptcy court abused its discretion in rendering a decision, it is not enough for the appellant to show the court chose the less desirable of two possible resolutions to the issue. And if the issue involves disputed facts, the bankruptcy court must have committed “clear error” to be reversed.
4. Simplify the story. Write your brief with punch – short, crisp, essential facts.
5. Organize your brief with short headings, rather than long sentence headings.
6. Paraphrase quotes whenever possible. Long block quotes are soporific (that means tedious and tiresome).
7. Focus your appellant’s argument on areas where the judge’s ruling is most susceptible to being reversed. A shotgun approach is rarely successful. Lead with your strengths.
8. Provide an adequate record, and, above all, know what is in it. Follow the rules with respect to organizing, paginating and tabbing the record (appendix), so that the judges and law clerks can find pertinent excerpts quickly. If the BAP judges can’t find it in the excerpts, they can not consider it in making a decision.
9. Use a conversational tone rather than a formally structured oral argument. This helps facilitate the transitions that are inevitable when interrupted with questions from the Panel. Although you’ll only have 15-20 minutes, feel free to take less than your allotted time – sometimes the less said the better. And expect the most questions to be asked of the party with the weakest position, and expect numerous questions about facts and procedure.
10. Be honest and direct in answering the Panel members’ questions. Acknowledge the weaknesses of your case. Since most issues are decided by reference to statutes and case law, use policy arguments sparingly – they rarely are important or effective.
11. Listen to questions asked of your opponent and be ready to fill in the blanks on matters of concern to the Panel.
12. Know why you’re there: know what relief you want (and why).
13. Do a little research on the members of your Panel – since there are so many published decisions, know what they’ve written about your issues. It’s never a good idea to discover the author of the decision you’re criticizing is the Panel member asking the questions.
1. Use many words when a few will do.
2. Make convoluted arguments – you simply don’t have the pages or time to waste.
3. Make grammatical or typographical errors.
4. Write in a disorganized and unintelligible manner.
5. Attack the trial judge or opposing counsel.
6. Use block quotes extensively.
7. Overuse policy arguments or § 105.
8. Avoid direct answers to the judges’ questions.
9. Deflect the question and distract the judge if it is not the question you wanted to hear. And remember, “I don’t know” can sometimes be the best answer.
10. Cut off the judge’s question in mid-sentence.
11. Be ignorant of, or mischaracterize the record.
12. Blame your unfamiliarity with the record on the fact that you did not handle the case at the trial level. (The “SODDI” excuse – “some other dude did it”).
13. Arrive late for oral argument without notifying the Clerk – everyone has to deal with the same traffic and weather issues you do.
III. Traps for the Unwary
And, for good measure, here are some “potholes” to avoid on your journey through the appellate process.
1. The 14-day appeal period is jurisdictional. It is computed using calendar days, not court days. FRBP 9006(a). The period begins to run from entry of the judgment or order to be appealed, not notice. Your failure to receive notice, or the clerk’s failure to serve notice of the entry of the order is NOT an excuse for an untimely notice of appeal. It is the appealing party’s responsibility to monitor the docket for entry of the order – check the bankruptcy court’s website, or if you’re still uncertain as to the status of a decision or order, call the Clerk’s office and check.
2. Remember: Your motion to dismiss an appeal as untimely before the expiration of the time to request an extension under FRBP 8002(c) alerts your opponent how to save the appeal.
3. An appeal from an untimely tolling motion under FRBP 8002(b) only raises the issue of the appropriateness of the order resolving the tolling motion, not the underlying order. And the standard for reversing a denial of a “motion for reconsideration” is usually much higher than that applicable to reverse the initial decision. Make a timely appeal or motion to extend time to appeal if your tolling motion is not timely filed.
4. The appellant’s Statement of Election to have appeal heard by district court must be filed at the same time as the Notice of Appeal, in a separate document, not attached to or incorporated in the body of the Notice of Appeal.
5. If the order on appeal is not final, appellant must obtain a FRCP 54(b) certification from the trial court, or move the BAP for leave to appeal.
6. Obtain a stay pending appeal if necessary to avoid mootness. Motions for a stay will not ordinarily be considered unless they are first made to the bankruptcy court or the movant explains why the stay wasn’t obtained from the bankruptcy court. FRBP 8005. “I didn’t think the bankruptcy judge would grant my stay” is not a sufficient explanation. It is usual for a stay to be denied by the BAP, without prejudice, for failure to bring the motion to the bankruptcy court in the first instance. But if time is of the essence, make sure the stay motion is made before the correct court. It may head off problems later if at the beginning of your request for stay directed to the bankruptcy court, you cite to Ho v. Dai Hwa Electronics (In re Ho), 265 B.R. 603 (9th Cir. BAP 2001), to establish that the bankruptcy court retains jurisdiction to rule on a motion for stay pending appeal, even after a notice of appeal has been filed. Requests for stay pending appeal to the Circuit are made to the BAP, the same way BAP appeal stay requests are initially made to the bankruptcy court. FRAP 8(a)(1)(A) (as made applicable by FRAP 6(b)(1)(C)).
7. Understand the standard of review and what hurdles need to be overcome to obtain a reversal.
8. Also understand the “Separate Judgment Rule.” Be aware that a separate judgment or order is usually required. Your appeal may be delayed until a proper separate judgment is entered.
9. Support your brief with your excerpts of the record. Don’t expect that the Panel (or their very busy law clerks) will look at supporting documents filed with intermediate motions. The excerpts of the record need to stand alone as support for your position. The excerpts may only contain items that are part of the record on appeal. FRBP 8006. Make sure your excerpts include the items listed in FRBP 8009(b); each item is clearly tabbed and pages are consecutively numbered.
10. Ninth Circuit jurisdiction may differ from BAP or district court jurisdiction. With the exception of appeals certified to the Circuit, the Court of Appeals has jurisdiction over final orders only. Therefore, a district court or BAP decision on an interlocutory appeal is not reviewable by the Circuit until the matter becomes final at the bankruptcy court level.
11. Motions for reconsideration or rehearing after the BAP has rendered its decision must be made within 14 days. FRBP 8015. A timely motion for reconsideration or rehearing tolls the time to appeal to the Circuit, but an untimely motion does not. The time to appeal to the Circuit is normally 30 days from the entry of the BAP decision; if the United States is a party the time is 60 days. FRAP 4 and 6.
12. Requests for sanctions must be made in a separately filed motion. FRBP 8020.
13. Appellees: supplement an inadequate record sparingly – you may be inadvertently helping appellant. Consider filing a motion to dismiss the appeal for an inadequate record instead.
The Honorable Jim D. Pappas received his undergraduate degree from Idaho State University in 1974, and his law degree from the University of Idaho College of Law in 1977. Prior to his appointment, Judge Pappas practiced throughout the Northwest in the area of commercial law, banking, workouts, secured transactions and all aspects of bankruptcy law.
Judge Pappas was appointed to the bench in 1990, and was reappointed to a second term in 2004. He served as the District’s Chief Judge from 1993 until 2004. In August 2005, Judge Pappas was appointed by the Ninth Circuit Court of Appeals to serve on the Circuit’s Bankruptcy Appellate Panel, a court that reviews the decisions made by other bankruptcy courts throughout the Western United States. Judge Pappas was elevated to Chief Judge of the BAP in May, 2010.
Judge Pappas is a member of the American Bankruptcy Institute, the National Conference of Bankruptcy Judges, and served as an Associate Editor of the American Bankruptcy Law Journal. In March, 2010, he was inducted as a Fellow in the American College of Bankruptcy. Judge Pappas lectures and writes extensively concerning bankruptcy law.