Bankruptcy and Restructuring Blog

On June 12, 2006, the United States Bankruptcy Appellate Panel of the Ninth Circuit, in Berman v. Maney, (In re Berman), BAP No. AZ-06-1133, held that the direct appeal provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) and the Interim Rules adopted to effectuate it do not apply to appeals arising from bankruptcy cases filed before October 17, 2005. 

When certain circumstances exist, BAPCPA authorizes the direct appeal of a bankruptcy court order to a court of appeals upon certification from the appropriate court and acceptance by the court of appeals. 28 U.S.C. § 158(d)(2). To implement the changes effected by BAPCPA, the Ninth Circuit BAP adopted the Interim Rules promulgated by the Judicial Conference of the United States. See 9th Cir. BAP GO No. 2005-1. General Order 2005-1 states that Interim Rules 8001(f) and 8003(d), pertaining to direct appeals to the court of appeals, apply to "appeals arising out of bankruptcy cases filed on or after October 17, 2005."

The debtors in Berman appealed a bankruptcy court order dismissing their chapter 13 case, and they requested that their appeal be heard by the Ninth Circuit Court of Appeals. Because the debtors commenced their case on September 13, 2005, the Ninth Circuit BAP held that BAPCPA's direct appeal provision did not apply. As a result, pre-BAPCPA law applied, which does not allow review by the court of appeals without first appealing the order to either a district court or a bankruptcy appellate panel. Accordingly, the debtors' request for a direct appeal was denied.