IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40435

Summary Calendar

In the Matter of: ASARCO, L.L.C., Et Al,

 Debtor

--------------------------------

AUTRY EARL BARNEY, 

 Appellant

Appeals from the United States District Court 

for the Southern District of Texas

USDC No. 2:15-CV-58

Before KING, OWEN, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Pro se Appellant Autry Earl Barney appeals the district court’s order 

dismissing his appeal from the bankruptcy court. Because the district court 

correctly concluded that Barney’s notice of appeal was not timely filed, the 

district court lacked jurisdiction to hear the appeal. Accordingly, we AFFIRM 

the order dismissing the appeal. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 23, 2015

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Autry Earl Barney’s pro se appeal arises from the bankruptcy 

proceedings of ASARCO, L.L.C. Barney reports that he alleged that ASARCO 

exposed him to asbestos and that he is currently suffering from asbestosis and 

other physical disorders as a result of this exposure. He further reports that 

he sought $150,000 in damages from ASARCO as compensation. On January 

15, 2015, Barney filed a notice of appeal with the United States District Court 

for the Southern District of Texas. While Barney was ostensibly appealing an 

order of the bankruptcy court, he did not identify which order he was

appealing, and no entry on the bankruptcy court’s docket sheet in the two 

months prior to January 15, 2015, mentions Barney.

On March 4, 2015, the district court dismissed Barney’s appeal under 

the Federal Rules of Bankruptcy Procedure. The court explained that the 

notice of appeal was filed more than fourteen days after the entry of any order 

by the bankruptcy court and was thus filed outside the time period allowed by 

Rule 8002(a)(1). The district court also held that dismissal was proper because 

Barney failed to comply with three other requirements specified in the Federal 

Rules of Bankruptcy Procedure. Barney filed a motion for reconsideration on 

March 19, 2015, and the district court denied that motion on March 25, 2015, 

for the same reasons that it originally dismissed Barney’s case. Barney timely 

appealed from the order on the motion for reconsideration on April 1, 2015. 

II. STANDARD OF REVIEW

Although it was not stated explicitly by the district court, Barney’s

failure to comply with the time limit in Rule 8002(a)(1) deprived the district 

court of jurisdiction to hear the appeal. In re Berman-Smith, 737 F.3d 997, 

1003 (5th Cir. 2013) (holding that a district court may not hear an appeal from 

a bankruptcy court if the notice of appeal was not filed within the time limit 

set by Rule 8002(a)). “Federal courts must be assured of their subject matter 

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jurisdiction at all times and may question it sua sponte at any stage of judicial 

proceedings.” In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999). We review de 

novo whether a district court had jurisdiction to hear an appeal from a 

bankruptcy court. Id. “Jurisdiction may not be waived, and federal appellate 

courts have a special obligation to consider not only their own jurisdiction, but 

also that of the lower courts.” In re Berman-Smith, 737 F.3d at 1000.

III. DISCUSSION

Rule 8002(a)(1) requires that a “notice of appeal must be filed with the 

bankruptcy clerk within 14 days after entry of the judgment, order, or decree 

being appealed.” Fed. R. Bankr. P. 8002(a)(1). The Supreme Court explained 

in Kontrick v. Ryan, 540 U.S. 443, 452–56 (2004), that time limits contained in 

procedural rules adopted by courts, rather than by Congress, are not 

jurisdictional. In Bowles v. Russell, 551 U.S. 205, 213 (2007), the Court 

clarified that time limits included in statutes are jurisdictional because 

Congress can determine “when, and under what conditions, federal courts can

hear [cases].” Id. Based on these decisions, we held in In re Berman-Smith, 

737 F.3d at 1003, that “[s]ince the statute defining jurisdiction over bankruptcy 

appeals, 28 U.S.C. § 158, expressly requires that the notice of appeal be filed 

under the time limit provided in Rule 8002 . . . the time limit is jurisdictional.” 

Id. 

In this case, Barney filed a notice of appeal on January 15, 2015, but 

prior to that date, the bankruptcy court had entered no orders, judgments, or 

decrees, in the preceding fourteen days. Thus, Barney’s notice of appeal was 

untimely, and the district court properly dismissed the appeal under Rule 

8002(a)(1). Because we find that the district court properly dismissed the case 

for lack of jurisdiction, we need not consider the other reasons given by the 

court for dismissal. However, we note that, assuming the district court had 

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jurisdiction, we find no error in the district court’s additional reasons for 

dismissing Barney’s case under the Federal Rules of Bankruptcy Procedure.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. Barney’s motion to proceed in forma pauperis is DENIED.

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