United States Court of Appeals For the First Circuit

No. 08-8046

IN RE LINDA LYNN WEAVER, DEBTOR ____________________

LINDA LYNN WEAVER,

Plaintiff, Respondent,

v.

HARMON LAW OFFICES, P.C., ET AL.,

Defendants, Petitioners.

____________________

PETITION FOR LEAVE TO APPEAL FROM THE BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William C. Hillman, U.S. Bankruptcy Judge]

Before

Lipez, Selya and Howard, Circuit Judges.

David M. Rosen, Harmon Law Offices, P.C., and Walter Oney on response to order to show cause and petition for leave to appeal.

September 17, 2008 Per Curiam. This is an attempted appeal from a

bankruptcy court decision under

(d)(2), added by

section 1233(a)(2)(B) of the Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005 ("BAPCPA"),

Stat. 23, 202-03. That statute permits direct appeals to the court

of appeals, with that court's permission, from bankruptcy court

decisions under certain circumstances, including where the

bankruptcy court certifies that the appeal satisfies the statutory

criteria for permitting such a direct appeal. See

(d)(2)(A). This is the first such attempted appeal to this

court.

After the bankruptcy court transmitted its certification

of the appeal to this court, we issued an order to show cause why

the appeal should not be dismissed because (1) no timely notice of

appeal was filed, as required by Interim Bankruptcy Rule

8001(f)(1), adopted by the Bankruptcy Court for the District of

Massachusetts by Standing Order dated October 11, 2005, and (2) no

authorization of the direct appeal was sought or obtained from this

court, as required by

(d)(2)(A). In their response

to that order, the defendants conceded that no notice of appeal had

been filed in the bankruptcy court1 and that no petition for

1 The defendants ask that the bankruptcy court's certification be deemed the functional equivalent of a notice of appeal. However, because certification of a direct appeal under section 158(d)(2) does not become effective until a timely appeal has been taken to the bankruptcy appellate panel under sections 158(b) and

-2- authorization to appeal had been filed in this court but asked that

the direct appeal be authorized despite those procedural missteps.

The answer to the question posed in the show-cause order

depends in the first instance on whether the procedural

requirements referenced in that order are deemed to be

jurisdictional or, rather, mere claims-processing rules. See

Bowles v. Russell,

(2007). Under Bowles,

that determination depends, in turn, on whether the requirements

are based on statutes, in which case they are deemed

jurisdictional, or merely on court-promulgated rules, in which case

they are not.

That question has not yet been decided by this

or any other court of appeals, and the answer is not free from

doubt.

Without resolving that jurisdictional question, we

exercise our discretion under section 158(d)(2)(A) to deny leave to

appeal. The existence of this serious jurisdictional question, and

the substantial possibility that jurisdiction would ultimately be

found lacking, means that allowing the appeal to proceed may not

serve the purposes of section 158(d)(2), i.e., a rapid and

definitive resolution of the underlying legal question by this

court. See Weber v. United States Trustee,

(2d Cir. 2007) (citing legislative history to that effect).

(c), BAPCPA, § 1233(b)(4)(A); Interim Bankr. R. 8001(f), the certification itself cannot serve as a notice of appeal.

-3- Rather, if, as the bankruptcy court found in certifying this

appeal, there are hundreds of cases pending in the Bankruptcy Court

for the District of Massachusetts raising the same issue certified

here, it would be preferable to resolve that issue in a case not

raising the potentially fatal procedural problems presented here.

To avoid such problems in future cases, litigants,

bankruptcy courts, and bankruptcy appellate panels should be

careful to follow the procedures set forth in section 158 itself

and in the applicable rules. Those rules appear in uncodified

section 1233(b) of the BAPCPA, Interim Bankruptcy Rule 8001(f)

(adopted by standing order by all bankruptcy courts in this

circuit), and Proposed Rule 8001(f) of the Federal Rules of

Bankruptcy Procedure, which will become effective on December 1,

2008, barring any contrary action by Congress in the meantime.

The petition is denied, and the appeal is terminated.

-4-