FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: JIM LEE WIERSMA; In re: 

PATRICIA DARLENE WIERSMA,

Debtors,

No. 05-35246 JIM LEE WIERSMA; PATRICIA

DARLENE BAP Nos. WIERSMA,

Appellants, ID-02-01523-MaPB 

ID-02-01541-MaPB

v. ID-03-01215-MaPB

BANK OF THE WEST, f/k/a United ID-03-01224-MaPB

California Bank,

Appellee,

UNITED STATES TRUSTEE,

Trustee-Appellee. 

In re: JIM LEE WIERSMA; In re: 

PATRICIA DARLENE WIERSMA,

Debtors,

No. 05-35248

BANK OF THE WEST, f/k/a United BAP No. California Bank,  ID-02-01523-MaPB Appellant,

OPINION

v.

JIM LEE WIERSMA; PATRICIA

DARLENE WIERSMA,

Appellees. 

3921
Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Brandt, Perris, and Marlar, Bankruptcy Judges, Presiding

Argued and Submitted

November 14, 2006—Portland, Oregon

Filed April 6, 2007

Before: Warren J. Ferguson, Diarmuid F. O’Scannlain, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Ferguson

3922 IN RE WIERSMA
COUNSEL

Brent T. Robinson, Ling, Robinson, & Walker, Rupert, Idaho,

for the debtors-appellants/cross-appellees. 

Kelly Greene McConnell, Givens Pursley LLP, Boise, Idaho,

for the appellee/cross-appellant. 

Michele M. Mansfield and Knight Elsberry, United States

Department of Justice, Executive Office for the United States

Trustee, Washington, D.C., for the appellee. 

OPINION

FERGUSON, Circuit Judge: 

Debtors Jim and Patricia Wiersma (“Debtors”), former

dairy farmers, appeal the decision of the Bankruptcy Appellate Panel (“BAP”) of the Ninth Circuit on issues related to

their Chapter 11 bankruptcy case. 

Debtors allege error in the BAP’s conclusions that (1) creditor Bank of the West (“Bank”) held a secure interest in Debtors’ settlement proceeds; (2) issues pertaining to court

approval of that settlement were moot; (3) the bankruptcy

court did not err in denying confirmation of Debtors’ Second

Amended Plan for reorganization; and (4) the bankruptcy

court acted within its discretion in dismissing Debtors’ bankruptcy case. Bank cross-appeals the BAP’s assertion of jurisdiction over the Secured Status Order, as does the U.S.

Trustee. The Trustee also appeals the BAP’s assertion of

jurisdiction over the bankruptcy court’s order of February 5,

IN RE WIERSMA 3925
2003, and urges the court to affirm the BAP’s conclusion that

the bankruptcy court did not abuse its discretion in dismissing

Debtors’ case. 

We reverse the BAP’s holding that it had jurisdiction over

the Secured Status Order and, in a separate memorandum disposition, affirm the BAP on all other issues. 

FACTUAL AND PROCEDURAL HISTORY

In 1985, Debtors began operating a large dairy farm in

Idaho. In 1998, they obtained a loan from Bank of the West

(f/k/a Sanwa Bank, f/k/a United California Bank), secured by

Debtors’ contractual rights to payment, general intangibles,

livestock, and milk products quota. 

Faulty wiring installed and maintained at the dairy by Gietzen Electric (“Gietzen”) caused electrical shocks to the 2,000-

cow herd, and many of the animals became sick and died. In

September 2000, Debtors commenced an action in state court

against Gietzen for the losses caused by the faulty wiring.

Debtors raised claims of negligence, breach of contract, negligent hiring and supervision, fraud, violations of the state Consumer Protection Act, and breach of warranty. They sought

approximately $6 million in damages. 

As a result of the electrical shocks to the animals, Debtors’

business suffered, and in October 2001 Debtors filed for

Chapter 11 bankruptcy. Bank had a $2.2 million secured

credit claim, making it Debtors’ largest secured creditor. In

July 2002, Debtors filed a Motion To Determine Secured Status to clarify what right, if any, Bank and O.H. Kruse (another

creditor, no longer a party to this action) held in the proceeds

of Debtors’ pending lawsuit against Gietzen. In September

2002, the bankruptcy court issued an order resolving the

respective interests in the Gietzen settlement (“Secured Status

Order” or “Order”). The Order held that both Bank and Kruse

3926 IN RE WIERSMA
had secured interests in any settlement proceeds. Debtors

timely appealed to the BAP. 

In December 2002, the BAP clerk issued an order raising

questions about the finality of the Secured Status Order (and

thus its immediate appealability). The clerk’s order stated,

“The routine jurisdictional screening conducted by the BAP

suggests that there may be an issue concerning the finality of

the order on appeal.” In re Wiersma, Nos. ID-02-1523, ID-02-

1541 (B.A.P. 9th Cir. Dec. 5, 2002) (clerk’s order re finality

issue). The BAP order gave the parties fourteen days to brief

the finality issue. One week later, Bank submitted its

response, which, according to the BAP’s subsequent summary, “contend[ed] that there might be additional appeals

arising from the underlying bankruptcy case in the immediate

future.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.

9th Cir. Jan. 17, 2003) (order re finality issue). Debtors did

not respond to the order. 

On January 17, 2003, the BAP issued a second order

regarding the finality of the Secured Status Order, directing

Debtors and Kruse to explain why the order was final, why

leave to appeal should be granted, and why the appeals should

not be stayed pending the confirmation hearing. Id. It also

stated, “Failure to timely respond may result in dismissal of

their respective cross-appeals for lack of prosecution.” Id. 

On February 7, 2003, the BAP dismissed Debtors’ appeal

of the Secured Status Order for failure to prosecute. It gave

Debtors ten days to request judicial review and reconsideration of the order. Eleven days later, Debtors filed a response

with the Bankruptcy Court for the District of Idaho, not with

the BAP. The BAP received the response several days later,

construed it as an untimely request for judicial review, denied

it, and left the February 7 dismissal in place. 

In April 2003, after the bankruptcy court dismissed Debtors’ bankruptcy case, Debtors appealed the Secured Status

IN RE WIERSMA 3927
Order of several months earlier. On appeal, the BAP vacated

its prior dismissal of Debtors’ first appeal of the Secured Status Order, concluding that the dismissal had been in error.

With one judge dissenting in part, the BAP held that it had

jurisdiction over the appeal of the Secured Status Order

because of its inherent authority to correct its own mistakes

and because of the unique circumstances doctrine. Wiersma v.

O.H. Kruse Grain & Milling (In re Wiersma), 324 B.R. 92,

104, 105 (B.A.P. 9th Cir. 2005). Bank appeals this holding.

DISCUSSION

We review de novo jurisdictional issues in bankruptcy

cases. Mantz v. Cal. State Bd. of Equalization (In re Mantz),

343 F.3d 1207, 1211 (9th Cir. 2003).

[1] Generally, a party to a bankruptcy action must file a

notice of appeal within ten days after entry of the order being

appealed. Fed. R. Bankr. P. 8002(a). The timely appeal

requirement is jurisdictional. Preblich v. Battley, 181 F.3d

1048, 1056 (9th Cir. 1999). “[T]he failure to timely file a

notice of appeal is a jurisdictional defect barring appellate

review.” Lopez v. Long (In re Long), 255 B.R. 241, 243

(B.A.P. 10th Cir. 2000) (quotations omitted). The purpose of

the Rule is to enable “prompt appellate review, often important to the administration of a case under the Code.” Fed. R.

Bankr. P. 8002 advisory committee note. 

[2] In this case, the order in question is the Secured Status

Order of September 20, 2002, in which the bankruptcy court

held that the Gietzen settlement proceeds belonged to Bank.1

Debtors timely appealed this order to the BAP on September

1The U.S. Trustee argues that Debtors’ appeal of the bankruptcy court’s

settlement approval order is also untimely and hence jurisdictionally

barred. The BAP, however, did not assert jurisdiction over that portion of

the appeal. It properly dismissed the settlement appeal as moot and thus

nonjusticiable. 

3928 IN RE WIERSMA
30, 2002, within ten days of the filing of the Order. After

Debtors twice failed to respond to the BAP clerk’s questions

concerning finality, however, the BAP dismissed that appeal

for failure to prosecute. Debtors’ second appeal of the

Secured Status Order was filed on April 9, 2003, six and a

half months after the Order was filed, well beyond the ten-day

limit provided by Fed. R. Bankr. P. 8002(a). 

Nevertheless, the BAP held that it retained jurisdiction for

two reasons. First, it concluded that because a court has jurisdiction to correct its own mistakes, it was entitled to correct

its “mistake” with regard to the finality of the Order. Second,

the BAP held that the unique circumstances doctrine allowed

the untimely appeal to proceed because the BAP clerk’s finality orders had misled Debtors into believing the Order was

interlocutory. For the reasons discussed below, neither of

these rationales justifies the BAP’s exercise of jurisdiction

over the Secured Status Order. 

Finality

[3] As a threshold issue, we must determine whether the

Order was in fact final. If it was interlocutory, as Debtors

argue, their appeal in April was timely. If, on the other hand,

the Order was final, the appeal should have been filed within

ten days of its issuance. Fed. R. Bankr. P. 8002. 

[4] An order is final if it constitutes a complete adjudication

of the issues at bar and clearly evidences the judge’s intention

that it be final. In re Slimick, 928 F.2d 304, 307 (9th Cir.

1990). The Secured Status Order met these requirements. The

bankruptcy court’s determination of Bank’s security interest

in any proceeds from the Gietzen suit resolved every issue

relating to the validity and extent of the Bank’s liens. Subsequent appeals of the court’s refusal to confirm a plan and its

decision to dismiss the case did not relate to the court’s analysis of Bank’s ability to attach the Gietzen settlement proceeds.

Regardless of the outcome of the plan confirmation, Bank’s

IN RE WIERSMA 3929
interests were resolved by the Order. The record also evidences the judge’s intent that the Secured Status Order be

final where the judge stated, “As far as I’m concerned in

[these] proceedings that’s a final order.” In re Wiersma, No.

BK-01-41874 (Bankr. D. Or. Mar. 28, 2003) (judge’s telephonic ruling). 

Furthermore, “a bankruptcy order is appealable where it 1)

resolves and seriously affects substantive rights and 2) finally

determines the discrete issue to which it is addressed.” In re

Frontier Properties, Inc., 979 F.2d 1358, 1363 (9th Cir.

1992). In determining the parties’ respective interests in the

proceeds of a major damages action, the Secured Status Order

resolved and seriously affected the parties’ substantive rights

and finally determined to whom the proceeds would flow. As

the bankruptcy judge observed, “If this case were to be dismissed presumably the bank would be entitled to receive the

1.442 million dollars in cash from the Gietzen settlement.” In

re Wiersma, No. BK-01-41874 (Bankr. D. Or. Mar. 28, 2003)

(judge’s telephonic ruling). 

[5] For these reasons, we conclude the Order was final and

Debtors’ first appeal was not interlocutory. 

Doctrine of Mistake

[6] A bankruptcy court has the authority to correct its own

mistakes of fact by discharging a prior order. Cisneros v.

United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.

1993). In Cisneros, the court granted the debtors a full compliance discharge after it mistakenly concluded that all creditors had been paid. Id. at 1464. In fact, however, the Internal

Revenue Service had filed a proof of claim that went unrecorded and unpaid. Id. The court learned this fact after it had

discharged the case, and it accordingly dismissed the discharge and reinstated the case. Id. On appeal, we affirmed the

bankruptcy court’s authority to vacate the discharge based on

“a misapprehension as to the facts of the case.” Id. at 1467.

3930 IN RE WIERSMA
[7] A bankruptcy court also retains “inherent power to correct its own clerical errors.” Duplessis v. Valenti (In re

Valenti), 310 B.R. 138, 147 (B.A.P. 9th Cir. 2004) (quoting

Ford v. Ford (In re Ford), 159 B.R. 590, 593 (Bankr. D. Or.

1993)); see also Fed. R. Civ. P. 60(a); Fed. R. Bankr. P. 9024.

Clerical errors involve “administrative lapse[s].” In re Brown,

No. 02-63073-aer13, 2006 Bankr. LEXIS 939, at *18 (Bankr.

D. Or. May 31, 2006). 

In this case, the BAP concluded that it made two mistakes

in the original dismissal. First, it “mistakenly believed the

[Secured Status Order was] interlocutory.” In re Wiersma,

324 B.R. at 104. Second, it “mistakenly dismissed [the

appeal] for lack of prosecution when [its] orders were

intended . . . to dismiss the appeals as interlocutory.” Id. Neither mistake is sufficient to discharge the original order dismissing the appeal. 

[8] The first mistake, regarding the actual status of the

order as either interlocutory or final, is an issue of law, not

one of fact. Cisneros, on which the BAP relied, dealt with the

bankruptcy court’s misapprehension of whether all creditors

had been paid, an issue of fact. Cisneros, 994 F.2d at 1467.

Cisneros did not deal with whether the court correctly analyzed the legal issues on appeal. The BAP’s legal mistake in

this case cannot be characterized as a “clerical error.” 

[9] The second purported mistake, that the BAP dismissed

the appeal for failure to prosecute when it really meant to dismiss it as interlocutory, could be the type of administrative

lapse that constitutes a clerical error. That this was such an

error, however, is not supported by any evidence in the

record. The second order by the BAP court clerk explicitly

stated that failure to respond to the request for briefing on the

finality issue “may result in dismissal . . . for lack of prosecution.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.

9th Cir. Jan. 17, 2003) (order re finality issue) (emphasis

added). When Debtors failed to respond, that is exactly what

IN RE WIERSMA 3931
happened: “the appeal [was] DISMISSED for failure to prosecute.” In re Wiersma, Nos. ID-02-1523, ID-02-1541 (B.A.P.

9th Cir. Feb. 7, 2003) (order of dismissal). There is no evidence that the BAP’s intent was to dismiss the appeal as interlocutory. As the dissenting BAP judge recognized, “There

was neither an inadvertent misapprehension of the facts, nor

did the initial dismissals not reflect the panel’s real intentions.” In re Wiersma, 324 B.R. at 115 (Brandt, J., dissenting

in part).2

[10] For these reasons, there was no mistake of fact that

would justify revoking the BAP’s dismissal of the original

appeal of the Secured Status Order. 

Doctrine of Unique Circumstances

[11] The second doctrine invoked by the BAP to justify its

jurisdiction was the doctrine of unique circumstances. In re

Wiersma, 324 B.R. at 104-05. Under the doctrine of unique

circumstances, a party’s untimeliness in appealing an order

may be excused if the party relied on the specific assurances

of a court that the appeal would be timely. Osterneck v. Ernst

& Whinney, 489 U.S. 169, 179 (1989).3

In concluding that the unique circumstances doctrine

allowed it to revisit the Secured Status Order, the BAP relied

on In re McAuley v. Orange Coast Thrift & Loan Ass’n (In

re McAuley), 66 B.R. 696, 700 (B.A.P. 9th Cir. 1986). In re

McAuley adopted the “reasonable, good faith reliance” standard established in United Artists Corp. v. La Cage Aux Fol2

Judge Brandt was in an ideal position to determine the panel’s intent:

the second order to show finality, threatening to dismiss for failure to

prosecute, had been before him. 

3The doctrine arose from three Supreme Court cases in the 1960s. See

Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. INS, 375 U.S. 384

(1964); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215

(1962). 

3932 IN RE WIERSMA
lies, Inc., 771 F.2d 1265, 1268 (9th Cir. 1985). In re McAuley,

66 B.R. at 700. Under that test, an appellant’s untimely appeal

will be overlooked if, in good faith, she reasonably relied on

some action by the court that led her to believe a later appeal

would still be timely. United Artists, 771 F.2d at 1268. In

Slimick v. Silva (In re Slimick), 928 F.2d 304, 309-10 (9th Cir.

1990), however, we expressly disapproved of the United Artists standard in light of the Supreme Court’s decision in

Osterneck. See also Mount Graham Red Squirrel v. Madigan,

954 F.2d 1441, 1462 (9th Cir. 1992) (observing that

“[s]ubsequent decisions of the Supreme Court and of our

court . . . have invalidated the good faith and reasonable reliance standard”). 

[12] In the wake of Osterneck, In re Slimick, and Mt. Graham Red Squirrel, it is no longer sufficient for the appellant

to show that her delay was caused by her reasonable and good

faith reliance on some action by a judicial officer that led her

to believe a delayed appeal would be timely. Rather, “the doctrine applies only where a court has affirmatively assured a

party that its appeal will be timely.” In re Slimick, 928 F.2d

at 310 (emphasis added). It is not enough that the court have

engaged in some “ambiguous or implicitly misleading conduct.” Id. The court must have “explicitly misl[ed] a party.”

Allred v. Kennerley (In re Kennerley), 995 F.2d 145, 148 (9th

Cir. 1993). 

In this case, the BAP concluded that it had “led [Debtors]

to believe that their original appeals were interlocutory” and

that they could therefore wait to appeal until after the final

order was issued. In re Wiersma, 324 B.R. at 105. The BAP

held that Debtors had “relied, in good faith, on the panel’s

judicial action in renewing their appeals in 2003.” Id. 

[13] In using a “good faith” standard, the BAP misapplied

the unique circumstances doctrine. The BAP should have

determined whether it or the bankruptcy court had explicitly

misled Debtors or given affirmative assurances that a subseIN RE WIERSMA 3933
quent appeal would be timely. See In re Kennerley, 995 F.2d

at 148; In re Slimick, 928 F.2d at 309-10. A review of the

record indicates there were no such assurances. The BAP

clerk’s order stated, “The routine jurisdictional screening conducted by the BAP suggests that there may be an issue concerning the finality of the order on appeal.” In re Wiersma,

Nos. ID-02-1523, ID-02-1541 (B.A.P. 9th Cir. Dec. 5, 2002)

(clerk’s order re finality issue) (emphasis added). At no point

did the BAP actually conclude that the Order was interlocutory and that appeal would be available later in the case. 

[14] At most, the BAP’s language in the order was “ambiguous or implicitly misleading,” but even that conduct “does

not release litigants from their appeal deadlines.” In re Slimick, 928 F.2d at 310. If Debtors believed the BAP clerk’s

requests for briefing on the finality issue were conclusions

that the appeal was interlocutory, they should have sought

clarification that they would be allowed to file a timely appeal

later in the proceedings. See id. 

[15] For these reasons, the unique circumstances doctrine

did not give the BAP jurisdiction to reconsider the Secured

Status Order. 

Law of the Case Doctrine

[16] Finally, the BAP’s exercise of jurisdiction over the

Order violates the law of the case doctrine. “Under the ‘law

of the case’ doctrine, a court is ordinarily precluded from

reexamining an issue previously decided by the same court,

or a higher court, in the same case.” Hydrick v. Hunter, 466

F.3d 676, 687 (9th Cir. 2006) (quoting Richardson v. United

States, 841 F.2d 993, 996 (9th Cir. 1988)); see also Coleman

v. Calderon, 210 F.3d 1047, 1052 (9th Cir. 2000) (discussing

finality rationale for the doctrine). Had the BAP actually

made a mistake or had there been unique circumstances,

equity concerns might outweigh the finality concerns of the

3934 IN RE WIERSMA
doctrine. In this case, however, the BAP’s decision to revisit

a previously dismissed issue was improper. 

CONCLUSION

The BAP no longer retained jurisdiction over the appeal of

the Secured Status Order after it dismissed the appeal for failure to prosecute. The doctrines of mistake and unique circumstances do not justify the BAP’s reassertion of jurisdiction

over the issue at the end of the case. Furthermore, the law of

the case doctrine precludes the BAP from revisiting the Order.

For these reasons, the BAP’s holding that it had jurisdiction

to review the Secured Status Order is REVERSED.

IN RE WIERSMA 3935