Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Bankruptcy StrategistFeaturesBankruptcyCivil AppealsLitigation

Update on Bankruptcy Appellate Practice Part Three — Finality

By Michael L. Cook
February 01, 2022

This installment of our appellate practice series reviews recent cases addressing the appellate jurisdiction of district courts and the courts of appeals, referred to as the "finality" doctrine. The relevant sections of the Judicial Code — §§157, 158, 1298 and 1292 — seem straightforward and clear. As shown below, though, the courts have often been inconsistent in applying the statute. (See Part One: Appellate Standing of this series in the December 2021 issue, and Part 2: Equitable Mootness in the January 2022 issue.)

Introductory Overview

Appeals to District Courts. District courts have jurisdiction over final judgments entered by bankruptcy judges as well as the jurisdiction to hear appeals with leave of court from interlocutory orders and decrees. 28 U.S.C. §158(a)(1). See, e.g., In re Purdue Pharma, L.P., 2021 WL 5979108, ** 41-42 (S.D.N.Y. Dec. 16, 2021) ("release of [third party] claim," in absence of consent, "a final judgment" in context of plan confirmation order; but bankruptcy court not constitutionally authorized to enter judgment on tort claim, which is subject to de novo review as a proposed legal conclusion under 28 U.S.C. §157(c)(1)); court vacated confirmation order in non-final interlocutory ruling because plan still can be modified on remand). Also, an interlocutory order issued under 11 U.S.C. §1121(d) affecting the debtor's exclusive period to file a reorganization plan is automatically appealable. 28 U.S.C. §158(a)(2). As a practical matter, the appellate jurisdiction of district courts is limited to proceedings in which bankruptcy courts are authorized to issue judicial determinations under 28 U.S.C §§1334(a) and 157(a). In re Walker, 51 F.3d 562 (5th Cir. 1995) (bankruptcy judge lacks power to hear proceedings that district court cannot hear and determine; §157 allows district court to refer cases to bankruptcy court).

This premium content is locked for The Bankruptcy Strategist subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

CLE Shouldn't Be the Only Mandatory Training for Attorneys Image

Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.

A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.