Interim Rules on Direct Appeals

In my last post, I noted that a Nevada court had detected a "catch-22" in the new provisions for direct appeals from the bankrutpcy court to the circuit court of appeal, which arguably require a bankruptcy court to make a certification that the matter warrants a direct appeal before any notice of appeal has been filed. The Ninth Circuit Bankruptcy Appellate Panel has addressed this potential snafu by adopting interim rules for direct appeals, as recommended by the United States Judicial Conference Standing Rules Committee. In re Adoption of Interim Procedural Rules, 332 B.R. 199 (9th Cir. B.A.P. 2005).

The interim rules: (1) confirm that a certification prior to filing of a notice of appeal is ineffective unless and until a notice of appeal is filed; (2) provide that a certification may be made only by the Bankruptcy Court prior to the docketing of the appeal, and only by the District Court or BAP after the appeal is docketed; (3) specify that a request by the parties for certification should be filed with the clerk of the court in which the matter is then pending; and (4) specify the contents of a request for certification and set the deadline for a response.

Since typically there is a gap in time between the filing of the notice of appeal and the docketing of the appeal with the District Court or BAP while the record on appeal is being identified and assembled, the rules give the Bankrutpcy Judge the opportunity to issue a certification either before or after a notice of appeal is filed.