Bankruptcy Law Research at NYLI: Circuit Court Review

In an appeal from the district court to the court of appeals, jurisdiction conferred by 28 USC §158(d) is limited to appeals as of right from final judgments rendered in appeals by district courts. 

Review of district court appellate decisions in interlocutory appeals by the court of appeals either must:

• wait until after finality occurs
• be the subject of a discretionary acceptance of a direct appeal under 28 USC §158(d)(2), or
• be the subject of a discretionary grant of leave to appeal under the terms of 28 USC §1292(b).

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) amended 28 USC §158(d) to provide for a direct appeal of a final or interlocutory order from the bankruptcy court to the court of appeals. 

For this to occur there must be:

• a timely filed notice of appeal plus a motion for leave to appeal if interlocutory
• a certification that direct appeal is appropriate (see criteria below), and
• an acceptance of the direct appeal by the court of appeals.

§1233 of BAPCPA provides a certification process for direct appeal.  Certification can be made by the bankruptcy or district court or all of the parties acting in concert.  The appeal must involve one of the following criteria in 28 USC §158(d)(2)(A):

• a question of law for which there is no controlling circuit or Supreme Court decision or it involves a matter of public importance;
• a question of law requiring resolution of conflicting decisions; or
• a situation in which an immediate appeal may materially advance the progress of the proceeding