28 U.S.C. § 158 — Appeals

Page 90 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 158 1 So in original. Probably should be followed by a dash. tried in the district court in which the bank- ruptcy case is pending, or in the district court in the district in which the claim arose, as deter- mined by the district court in which the bank- ruptcy case is pending. (c)(1) A bankruptcy judge may hear a pro- ceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after re- viewing de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of para- graph (1) of this subsection, the district court, with the consent of all the parties to the pro- ceeding, may refer a proceeding related to a case under title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments, subject to review under section 158 of this title. (d) The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely mo- tion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires con- sideration of both title 11 and other laws of the United States regulating organizations or ac- tivities affecting interstate commerce. (e) If the right to a jury trial applies in a pro- ceeding that may be heard under this section by a bankruptcy judge, the bankruptcy judge may conduct the jury trial if specially designated to exercise such jurisdiction by the district court and with the express consent of all the parties. (Added Pub. L. 98–353, title I, § 104(a), July 10, 1984, 98 Stat. 340; amended Pub. L. 99–554, title I, §§ 143, 144(b), Oct. 27, 1986, 100 Stat. 3096; Pub. L. 103–394, title I, § 112, Oct. 22, 1994, 108 Stat. 4117; Pub. L. 109–8, title VIII, § 802(c)(1), Apr. 20, 2005, 119 Stat. 145.) Editorial Notes AMENDMENTS 2005—Subsec. (b)(2)(P). Pub. L. 109–8 added subpar. (P). 1994—Subsec. (e). Pub. L. 103–394 added subsec. (e). 1986—Subsec. (b)(2). Pub. L. 99–554, in subpar. (B) sub- stituted ‘‘interests’’ for ‘‘interest’’ and inserted ref- erence to chapter 12, and in subpar. (G) inserted a comma after ‘‘annul’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before such ef- fective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of Title 11. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before Oct. 22, 1994, see sec- tion 702 of Pub. L. 103–394, set out as a note under sec- tion 101 of Title 11. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99–554, set out as a note under section 581 of this title. § 158. Appeals (a) The district courts of the United States shall have jurisdiction to hear appeals 1 (1) from final judgments, orders, and decrees; (2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increas- ing or reducing the time periods referred to in section 1121 of such title; and (3) with leave of the court, from other inter- locutory orders and decrees; of bankruptcy judges entered in cases and pro- ceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the dis- trict court for the judicial district in which the bankruptcy judge is serving. (b)(1) The judicial council of a circuit shall es- tablish a bankruptcy appellate panel service composed of bankruptcy judges of the districts in the circuit who are appointed by the judicial council in accordance with paragraph (3), to hear and determine, with the consent of all the parties, appeals under subsection (a) unless the judicial council finds that— (A) there are insufficient judicial resources available in the circuit; or (B) establishment of such service would re- sult in undue delay or increased cost to parties in cases under title 11. Not later than 90 days after making the finding, the judicial council shall submit to the Judicial Conference of the United States a report con- taining the factual basis of such finding. (2)(A) A judicial council may reconsider, at any time, the finding described in paragraph (1). (B) On the request of a majority of the district judges in a circuit for which a bankruptcy appel- late panel service is established under paragraph (1), made after the expiration of the 1-year pe- riod beginning on the date such service is estab- lished, the judicial council of the circuit shall determine whether a circumstance specified in subparagraph (A) or (B) of such paragraph ex- ists. (C) On its own motion, after the expiration of the 3-year period beginning on the date a bank- ruptcy appellate panel service is established under paragraph (1), the judicial council of the circuit may determine whether a circumstance specified in subparagraph (A) or (B) of such paragraph exists. (D) If the judicial council finds that either of such circumstances exists, the judicial council may provide for the completion of the appeals then pending before such service and the orderly termination of such service. (3) Bankruptcy judges appointed under para- graph (1) shall be appointed and may be re- appointed under such paragraph. (4) If authorized by the Judicial Conference of the United States, the judicial councils of 2 or Page 91 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 158 more circuits may establish a joint bankruptcy appellate panel comprised of bankruptcy judges from the districts within the circuits for which such panel is established, to hear and determine, upon the consent of all the parties, appeals under subsection (a) of this section. (5) An appeal to be heard under this subsection shall be heard by a panel of 3 members of the bankruptcy appellate panel service, except that a member of such service may not hear an ap- peal originating in the district for which such member is appointed or designated under sec- tion 152 of this title. (6) Appeals may not be heard under this sub- section by a panel of the bankruptcy appellate panel service unless the district judges for the district in which the appeals occur, by majority vote, have authorized such service to hear and determine appeals originating in such district. (c)(1) Subject to subsections (b) and (d)(2), each appeal under subsection (a) shall be heard by a 3-judge panel of the bankruptcy appellate panel service established under subsection (b)(1) unless— (A) the appellant elects at the time of filing the appeal; or (B) any other party elects, not later than 30 days after service of notice of the appeal; to have such appeal heard by the district court. (2) An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules. (d)(1) The courts of appeals shall have jurisdic- tion of appeals from all final decisions, judg- ments, orders, and decrees entered under sub- sections (a) and (b) of this section. (2)(A) The appropriate court of appeals shall have jurisdiction of appeals described in the first sentence of subsection (a) if the bankruptcy court, the district court, or the bankruptcy ap- pellate panel involved, acting on its own motion or on the request of a party to the judgment, order, or decree described in such first sentence, or all the appellants and appellees (if any) act- ing jointly, certify that— (i) the judgment, order, or decree involves a question of law as to which there is no con- trolling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public impor- tance; (ii) the judgment, order, or decree involves a question of law requiring resolution of con- flicting decisions; or (iii) an immediate appeal from the judg- ment, order, or decree may materially advance the progress of the case or proceeding in which the appeal is taken; and if the court of appeals authorizes the direct appeal of the judgment, order, or decree. (B) If the bankruptcy court, the district court, or the bankruptcy appellate panel— (i) on its own motion or on the request of a party, determines that a circumstance speci- fied in clause (i), (ii), or (iii) of subparagraph (A) exists; or (ii) receives a request made by a majority of the appellants and a majority of appellees (if any) to make the certification described in subparagraph (A); then the bankruptcy court, the district court, or the bankruptcy appellate panel shall make the certification described in subparagraph (A). (C) The parties may supplement the certifi- cation with a short statement of the basis for the certification. (D) An appeal under this paragraph does not stay any proceeding of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken, unless the respective bankruptcy court, district court, or bankruptcy appellate panel, or the court of ap- peals in which the appeal is pending, issues a stay of such proceeding pending the appeal. (E) Any request under subparagraph (B) for certification shall be made not later than 60 days after the entry of the judgment, order, or decree. (Added Pub. L. 98–353, title I, § 104(a), July 10, 1984, 98 Stat. 341; amended Pub. L. 101–650, title III, § 305, Dec. 1, 1990, 104 Stat. 5105; Pub. L. 103–394, title I, §§ 102, 104(c), (d), Oct. 22, 1994, 108 Stat. 4108–4110; Pub. L. 109–8, title XII, § 1233(a), Apr. 20, 2005, 119 Stat. 202; Pub. L. 111–327, § 2(c)(1), Dec. 22, 2010, 124 Stat. 3562.) Editorial Notes REFERENCES IN TEXT The Bankruptcy Rules, referred to in subsec. (c)(2), are set out in the Appendix to Title 11, Bankruptcy. AMENDMENTS 2010—Subsec. (d)(2)(D). Pub. L. 111–327 substituted ‘‘appeal is pending’’ for ‘‘appeal in pending’’. 2005—Subsec. (c)(1). Pub. L. 109–8, § 1233(a)(1), sub- stituted ‘‘Subject to subsections (b) and (d)(2),’’ for ‘‘Subject to subsection (b),’’. Subsec. (d). Pub. L. 109–8, § 1233(a)(2), designated ex- isting provisions as par. (1) and added par. (2). 1994—Subsec. (a). Pub. L. 103–394, § 102, which directed the amendment of subsec. (a) by striking ‘‘from’’ the first place it appears and all that follows through ‘‘de- crees,’’ and inserting pars. (1) to (3), was executed by making the insertion and by striking after ‘‘appeals’’ ‘‘from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and de- crees,’’, which is through ‘‘decrees,’’ the second place appearing, to reflect the probable intent of Congress. Subsec. (b)(1). Pub. L. 103–394, § 104(c)(3), added par. (1) and struck out former par. (1) which read as follows: ‘‘The judicial council of a circuit may establish a bank- ruptcy appellate panel, comprised of bankruptcy judges from districts within the circuit, to hear and deter- mine, upon the consent of all the parties, appeals under subsection (a) of this section.’’ Subsec. (b)(2). Pub. L. 103–394, § 104(c)(3), added par. (2). Former par. (2) redesignated (4). Subsec. (b)(3). Pub. L. 103–394, § 104(c)(1), (3), added par. (3) and struck out former par. (3) which read as fol- lows: ‘‘No appeal may be referred to a panel under this subsection unless the district judges for the district, by majority vote, authorize such referral of appeals origi- nating within the district.’’ Subsec. (b)(4). Pub. L. 103–394, § 104(c)(1), (2), redesig- nated par. (2) as (4) and struck out former par. (4) which read as follows: ‘‘A panel established under this section shall consist of three bankruptcy judges, provided a bankruptcy judge may not hear an appeal originating within a district for which the judge is appointed or designated under section 152 of this title.’’ Subsec. (b)(5), (6). Pub. L. 103–394, § 104(c)(4), added pars. (5) and (6). Page 92 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 159 Subsec. (c). Pub. L. 103–394, § 104(d), designated exist- ing provisions as par. (2) and added par. (1). 1990—Subsec. (b)(2) to (4). Pub. L. 101–650 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before such ef- fective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of Title 11. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before Oct. 22, 1994, see sec- tion 702 of Pub. L. 103–394, set out as a note under sec- tion 101 of Title 11. PROCEDURAL RULES Pub. L. 109–8, title XII, § 1233(b), Apr. 20, 2005, 119 Stat. 203, provided that: ‘‘(1) TEMPORARY APPLICATION.—A provision of this subsection shall apply to appeals under section 158(d)(2) of title 28, United States Code, until a rule of practice and procedure relating to such provision and such ap- peals is promulgated or amended under chapter 131 of such title. ‘‘(2) CERTIFICATION.—A district court, a bankruptcy court, or a bankruptcy appellate panel may make a cer- tification under section 158(d)(2) of title 28, United States Code, only with respect to matters pending in the respective bankruptcy court, district court, or bankruptcy appellate panel. ‘‘(3) PROCEDURE.—Subject to any other provision of this subsection, an appeal authorized by the court of appeals under section 158(d)(2)(A) of title 28, United States Code, shall be taken in the manner prescribed in subdivisions (a)(1), (b), (c), and (d) of rule 5 of the Fed- eral Rules of Appellate Procedure. For purposes of sub- division (a)(1) of rule 5— ‘‘(A) a reference in such subdivision to a district court shall be deemed to include a reference to a bankruptcy court and a bankruptcy appellate panel, as appropriate; and ‘‘(B) a reference in such subdivision to the parties requesting permission to appeal to be served with the petition shall be deemed to include a reference to the parties to the judgment, order, or decree from which the appeal is taken. ‘‘(4) FILING OF PETITION WITH ATTACHMENT.—A petition requesting permission to appeal, that is based on a cer- tification made under subparagraph (A) or (B) of sec- tion 158(d)(2) shall— ‘‘(A) be filed with the circuit clerk not later than 10 days after the certification is entered on the docket of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken; and ‘‘(B) have attached a copy of such certification. ‘‘(5) REFERENCES IN RULE 5.—For purposes of rule 5 of the Federal Rules of Appellate Procedure— ‘‘(A) a reference in such rule to a district court shall be deemed to include a reference to a bank- ruptcy court and to a bankruptcy appellate panel; and ‘‘(B) a reference in such rule to a district clerk shall be deemed to include a reference to a clerk of a bankruptcy court and to a clerk of a bankruptcy appellate panel. ‘‘(6) APPLICATION OF RULES.—The Federal Rules of Ap- pellate Procedure shall apply in the courts of appeals with respect to appeals authorized under section 158(d)(2)(A), to the extent relevant and as if such ap- peals were taken from final judgments, orders, or de- crees of the district courts or bankruptcy appellate panels exercising appellate jurisdiction under sub- section (a) or (b) of section 158 of title 28, United States Code.’’ § 159. Bankruptcy statistics (a) The clerk of the district court, or the clerk of the bankruptcy court if one is certified pursu- ant to section 156(b) of this title, shall collect statistics regarding debtors who are individuals with primarily consumer debts seeking relief under chapters 7, 11, and 13 of title 11. Those sta- tistics shall be in a standardized format pre- scribed by the Director of the Administrative Office of the United States Courts (referred to in this section as the ‘‘Director’’). (b) The Director shall— (1) compile the statistics referred to in sub- section (a); (2) make the statistics available to the pub- lic; and (3) not later than July 1, 2008, and annually thereafter, prepare, and submit to Congress a report concerning the information collected under subsection (a) that contains an analysis of the information. (c) The compilation required under subsection (b) shall— (1) be itemized, by chapter, with respect to title 11; (2) be presented in the aggregate and for each district; and (3) include information concerning— (A) the total assets and total liabilities of the debtors described in subsection (a), and in each category of assets and liabilities, as reported in the schedules prescribed pursu- ant to section 2075 of this title and filed by debtors; (B) the current monthly income, average income, and average expenses of debtors as reported on the schedules and statements that each such debtor files under sections 521 and 1322 of title 11; (C) the aggregate amount of debt dis- charged in cases filed during the reporting period, determined as the difference between the total amount of debt and obligations of a debtor reported on the schedules and the amount of such debt reported in categories which are predominantly nondischargeable; (D) the average period of time between the date of the filing of the petition and the closing of the case for cases closed during the reporting period; (E) for cases closed during the reporting period— (i) the number of cases in which a reaf- firmation agreement was filed; and (ii)(I) the total number of reaffirmation agreements filed; (II) of those cases in which a reaffirma- tion agreement was filed, the number of cases in which the debtor was not rep- resented by an attorney; and (III) of those cases in which a reaffirma- tion agreement was filed, the number of cases in which the reaffirmation agree- ment was approved by the court; (F) with respect to cases filed under chap- ter 13 of title 11, for the reporting period—