The Ninth Circuit 2018 Annual Report tells us that last year there were 277 appeals from bankruptcy courts in the Central District of California. Total appeals in the 9th Cir were 623 so we are almost half. Of the 277 in the Central District, 131 were to the BAP and 146 to the district courts.
Every appeals program I have been to since forever spends a healthy amount of time discussing which court is “better” for the appeal – the BAP or the district court.
Here is my take on how to decide which court to appeal in:
- If the issue is truly a commercial bankruptcy issue, it is rarely better to appeal to the district court. Plans and confirmation, the automatic stay and preferences befuddle most district court judges and their clerks. One district court judge told me that he is mystified that anyone would want him to resolve a bankruptcy issue.
- If there is BAP precedence against you, the BAP is bound by its prior rulings so you might as well go to the district court which is not bound by BAP rulings in other cases.
- If you suspect that the matter is going to go to the 9th Circuit irrespective of the result at the first level of appeal, go to the BAP. It will recognize the issue and explain it to the 9th Circuit for you.
- The BAP is ruling pretty quickly these days. You can expect a resolution within 3-4-5 months. The district court in my experience takes a lot longer.
- The BAP will almost always allow oral argument. The district court rarely does (in my experience).
- If the matter is really heavy duty state court -non-bankruptcy court – litigation, the district court might be better. For example, claims objections based on state law. The district court is likely more familiar and comfortable with non-bankruptcy litigation issues.
The idea that one court or the other will “rubber stamp” the bankruptcy court is ridiculous and insulting to the judges.