8000-1(d):  Appeals: DIRECT APPEAL to Ninth Circuit Court of Appeals

A party to a contested matter or adversary proceeding is authorized to seek permission to make a direct appeal to the Ninth Circuit Court of Appeals, instead of first obtaining appellate review from the Bankruptcy Appellate Panel for the Ninth Circuit (BAP) or the District Court for the Central District of California (District Court).  See 28 U.S.C. 158(d).  

However, the first step to appealing an order or judgment is to file a Notice of Appeal to the District Court or BAP, even though a party intends to seek direct review at the Ninth Circuit Court of Appeals.  See Federal Rules of Bankruptcy Procedure Rule 8006.   The Notice of Appeal must be filed within 14 days of entry of the order being appealed.   Now that a timely Notice of Appeal has been filed, the party(ies) are able to proceed in the District Court or BAP while also seeking permission for direct review from the Ninth Circuit Court of Appeals. 

To obtain permission for a direct appeal, a party (or parties) must file a petition with the Ninth Circuit Court of Appeals. See Federal Rules of Appellate Procedure Rule 5 and Rule 6(c).   However, before filing a request for permission the party(ies) must obtain a certification that the intended direct appeal meets the standard of 28 U.S.C. 158(d)(2).     

PLEASE NOTE that there is no guarantee that a request to appeal directly to the Ninth Circuit Court of Appeals will be granted.

STEP ONE -- File a Notice of Appeal within 14 days of Entry of the Order.  File a "Notice of Appeal and Statement of Election" with the bankruptcy court.  See FRBP 8006(a)(2).

The Notice of Appeal form generally must be filed no later than 14 days after the court enters an order or judgment that sets forth the ruling (see FRBP 8002).  Some parties file their Notice of Appeal before the court enters the order or judgment on the court docket; this is authorized.

On the Notice of Appeal form, the party must indicate whether they want to appeal the order or judgment to the District Court or to the BAP.

STEP TWO -- Obtain a Certification That Meets the Standard of 28 U.S.C. 158(d)(2).   The party or parties may choose ONE of the following options:

(1) Certification from the Bankruptcy Court, District Court, or BAP - File a request for certification with the court where the matter is considered pending.  See FRBP 8006(b).  The deadline to file a request for certification is 60 days after entry of the order or judgment.  See FRBP 8006(f)(1); 

OR

(2) Self-Certification by All Parties to the Appeal.  All parties must prepare and sign a mandatory form.  See FRBP 8006(c)(1).  See below to access Official Form 424.  This form must be filed with the court where the matter is considered pending.  See FRBP 8006(b).   After the self-certification form is filed and a judge's copy is served, the court may supplement the certification within 14-days.  See FRBP 8006(c)(2). 

STEP THREE -- File a Petition for Permission to Appeal with the Ninth Circuit Court of Appeals.  File a petition for permission to appeal with the Ninth Circuit Court of Appeals.  Federal Rules of Appellate Procedure Rule 5.  The petition must be filed within 30 days of the date the order granting certification was entered, or the date a joint self-certification was filed.  See FRBP 8006(g).

When filing the petition for permission, the party(ies) must include the certification with the petition. 

The Ninth Circuit Court of Appeals has discretion to accept the appeal or decline to accept the appeal.   

STEP FOUR --

(1) If the Petition is Granted, Perfect the Appeal.  If the petition for permission to appeal is granted by the Ninth Circuit Court of Appeals, an additional fee is required to perfect the appeal.  This fee is the difference between the direct appeal filing fee and the fee paid to file the initial appeal to the District Court or BAP.   The parties should notify the District Court or BAP that the petition for permission has been granted.

(2) If the Petition is Not Granted.  If the petition for permission is denied, the parties will proceed with their appeal that is pending before the District Court or BAP.