UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

In re: MICHAEL LYNN ROBERTSON, 

 Debtor. 

BANNER BANK, formerly doing business 

in Utah as AmericanWest Bank or Far 

West Bank, 

 Plaintiff - Appellee, 

v. 

MICHAEL LYNN ROBERTSON, 

 Defendant - Appellant. 

No. 18-4060 

(BAP No. 17-034-UT) 

(Bankruptcy Appellate Panel) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. 

_________________________________ 

The United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP) 

dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of 

jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filed 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 29, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

under Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did 

not toll the time limit for filing his notice of appeal from the bankruptcy court’s 

underlying judgment. Accordingly, the BAP concluded that his notice of appeal was 

untimely and that the BAP lacked jurisdiction. Exercising jurisdiction under 

28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 9023 motion was 

untimely and reaffirm Tenth Circuit precedent that the time to file a notice of appeal 

from a bankruptcy court is jurisdictional. We also hold that an untimely Rule 9023 

motion is ineffective to toll the time for filing a notice of appeal and that the BAP 

may raise the timeliness of a Rule 9023 motion sua sponte. We deny without 

prejudice appellee’s request for attorney fees. 

I. Overview of legal framework

 The issues in this appeal turn primarily on one statute and several rules of 

bankruptcy procedure governing the time to file a notice of appeal from a bankruptcy 

court. We therefore set out the relevant legal framework before turning to the facts 

and procedural background of this case. 

In 28 U.S.C. § 158(c)(2), Congress included a timeliness condition for taking 

appeals from bankruptcy court decisions: “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.” § 158(c)(2) (emphasis added). In 

turn, Bankruptcy Rule 8002(a)(1) states: “Except as provided in subdivisions (b) and 

(c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after 
3 

entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 

8002(a)(1). An exception in subdivision (b) is relevant here and provides that Rule 

8002(a)(1)’s 14-day time period for filing a notice of appeal can be extended when 

certain motions, including a Rule 9023 motion, are timely filed: 

If a party files in the bankruptcy court any of the following motions and 

does so within the time allowed by these rules, the time to file an appeal 

runs for all parties from the entry of the order disposing of the last such 

remaining motion: . . . (B) to alter or amend the judgment under Rule 

9023[.] 

Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And Bankruptcy Rule 9023 

requires that “[a] motion for a new trial or to alter or amend a judgment shall be filed 

. . . no later than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. 

 With this framework in mind, we turn to the factual and procedural 

background of this case. 

II. Factual and procedural background 

 Through counsel, Mr. Robertson filed a Chapter 7 bankruptcy petition. Banner 

Bank (Bank) initiated an adversary proceeding seeking to except from discharge a 

deficiency judgment it had obtained against Mr. Robertson in Utah state court. After 

Mr. Robertson’s counsel withdrew, Mr. Robertson proceeded pro se, and the parties 

filed cross-motions for summary judgment. On March 30, 2017, the bankruptcy 

court entered an order and judgment granting the Bank’s motion and denying 

Mr. Robertson’s motion. Fourteen days later, on April 13, 2017, Mr. Robertson 

mailed a Rule 9023 motion to the bankruptcy court, asking the court to reconsider, 

alter, or amend the judgment. The motion was entered on the bankruptcy court’s 
4 

docket on April 14, 2017, which was 15 days after the judgment. The parties fully 

briefed the motion, and the Bank never complained that the motion was untimely. 

The bankruptcy court denied the motion on the merits, never mentioning whether the 

motion was timely. 

 On July 14, 2017, 14 days after the bankruptcy court disposed of the 

Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of 

appeal designated only the bankruptcy court’s March 30, 2017 order and judgment as 

the subject of the appeal. After the parties completed merits briefing—where the 

Bank did not dispute that the BAP had jurisdiction over the appeal—the BAP issued 

an order to show cause why the appeal should not be dismissed for lack of 

jurisdiction because the notice of appeal appeared untimely. 

After considering the parties’ responses to the show-cause order, the BAP 

determined that the notice of appeal was untimely. The BAP concluded that because 

Mr. Robertson’s Rule 9023 motion was filed 15 days after entry of judgment, it was 

untimely and therefore did not toll the running of Rule 8002(a)(1)’s 14-day appeal 

period, which the BAP treated as jurisdictional. In reaching its conclusions, the BAP 

rejected Mr. Robertson’s argument that mailing the Rule 9023 motion on the 

fourteenth day after entry of the judgment was sufficient to render the motion timely 

filed, which the BAP said occurs when “a document [is] received by the clerk,” R., 

Vol. I at 35. The BAP also rejected his argument that by mailing the motion to the 

clerk, he had served the clerk, and that service is complete upon mailing. The BAP 

reasoned that Rule 9023 requires filing within 14 days, and service is not equivalent 
5 

to filing. Accordingly, the BAP concluded that his notice of appeal was untimely and 

dismissed the appeal for lack of jurisdiction. 

Mr. Robertson filed a motion for rehearing or to alter or amend the BAP’s 

judgment, arguing that the time to file an appeal with the BAP was not jurisdictional, 

that Rule 9023 is a claim-processing rule and the Bank had forfeited any objection to 

the timeliness of his Rule 9023 motion, and that the BAP should not have considered 

the timeliness of that motion sua sponte. The BAP denied the motion for rehearing. 

This appeal followed. 

III. Discussion

 Mr. Robertson raises three issues on appeal, which we address in the following 

order: (1) whether a Rule 9023 motion is deemed filed when mailed, so that his 

Rule 9023 motion was timely filed; (2) whether this circuit’s law that Rule 

8002(a)(1)’s time limit for filing a notice of appeal from a bankruptcy court’s 

judgment is jurisdictional remains good after intervening Supreme Court decisions; 

and (3) whether Rule 9023’s 14-day timeliness requirement is a claim-processing rule 

that the Bank waived, so the untimely Rule 9023 motion was effective in tolling the 

appeal period. The third issue has a related concern: whether it was proper for the 

BAP to raise the timeliness of the Rule 9023 motion sua sponte as a predicate to 

determining its jurisdiction. 

The issues on appeal concern matters of law or “mixed questions consisting 

primarily of legal conclusions drawn from the facts,” so our review is de novo. 

Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir. 1997). We afford 
6 

a liberal construction to Mr. Robertson’s pro se filings, but we do not act as his 

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 

A. A Rule 9023 motion is filed when the court receives it

 We first address whether Mr. Robertson’s Rule 9023 motion was timely filed. 

If it was, then it tolled the appeal period, his notice of appeal to the BAP was timely, 

and we would not have to address any other issues in this appeal. We conclude, 

however, that the motion was not timely filed. 

Mr. Robertson argues that his motion should be treated as filed on April 13, 

2017, the fourteenth day after entry of judgment, because he placed it in the United 

States mail that day, postage prepaid. He contends that the Federal Rules of 

Bankruptcy Procedure do not define when “filing” occurs, but he advocates for 

defining that moment by reference to Supreme Court Rule 29.2, which allows the 

date of filing to be the date of mailing provided certain requirements are satisfied.1

 

We disagree with Mr. Robertson’s premise that no federal bankruptcy rule 

defines when filing occurs. Therefore, we need not consider whether Supreme Court 

Rule 29.2 should apply. As noted, a Rule 9023 motion must be “filed . . . no later 

than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023 (emphasis added). In 

adversary proceedings, such as we have here, the filing of papers is governed by 

 1

 In relevant part, Supreme Court Rule 29.2 provides: “A document is timely 

filed if it is received by the Clerk within the time specified for filing; or if it is sent to 

the Clerk through the United States Postal Service by first-class mail (including 

express or priority mail), postage prepaid, and bears a postmark, other than a 

commercial postage meter label, showing that the document was mailed on or before 

the last day for filing . . . .” 
7 

Federal Rule of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (“Rule 5 F.R.Civ.P. 

applies in adversary proceedings.”). And under Civil Rule 5, “[a] paper not filed 

electronically”—like Mr. Robertson’s Rule 9023 motion—“is filed by delivering it 

. . . to the clerk” or “to a judge who agrees to accept it for filing.” Fed. R. Civ. 

P. 5(d)(2) (emphasis added). Delivery, and hence filing, requires receipt by the clerk 

or a judge. See United States v. Lombardo, 241 U.S. 73, 76 (1916) (“Filing, it must 

be observed, is not complete until the document is delivered and received.”); In re 

Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974) (“[M]ailing alone does not 

constitute filing[.] . . . [F]iling requires delivery and receipt by the proper party.” 

(citations omitted)); Kahler-Ellis Co. v. Ohio Tpk. Comm’n, 225 F.2d 922, 922 

(6th Cir. 1955) (depositing a document in the mail “is not a filing; only when the 

clerk acquires custody has [a document] been filed” (citations omitted)). 

Mr. Robertson does not argue that the clerk or a judge received his Rule 9023 

motion on April 13, 2017, but only that he mailed it on that date. Consequently, the 

motion was untimely.2

 2

 The Bank has not cited Rule 7005 or its incorporation of Civil Rule 5, and 

the BAP approached this issue by analyzing the meaning of the word “filed” in 

Federal Rule of Bankruptcy Procedure 5005(a)(1), which provides that “motions . . . 

required to be filed by these rules, except as provided in 28 U.S.C. § 1409 

[concerning venue in Chapter 11 proceedings], shall be filed with the clerk in the 

district where the case under the Code is pending.” Even if Bankruptcy Rule 5005 

controls, we would reach the same conclusion—that mailing is not equivalent to 

filing. 
8 

B. Rule 8002(a)(1)’s time limit is jurisdictional

We next consider Mr. Robertson’s argument that Rule 8002(a)(1)’s 14-day 

time limit for filing a notice of appeal from a bankruptcy court’s ruling is not 

jurisdictional but a claim-processing rule. The distinction matters because if a time 

limit for filing a notice of appeal is “jurisdictional,” then “late filing of the appeal 

notice necessitates dismissal of the appeal”; but if it is “a mandatory 

claim-processing rule,” it is “subject to forfeiture if not properly raised by the 

[opposing party].” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 

16 (2017). For the following reasons, we reject Mr. Robertson’s argument. 

We considered Rule 8002(a) in Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 

710 (10th Cir. 1992), holding that the “failure to file a timely notice of appeal [is] a 

jurisdictional defect barring appellate review.” In Emann v. Latture (In re Latture), 

605 F.3d 830 (10th Cir. 2010), we reaffirmed our holding in In re Herwit after 

considering the Supreme Court’s intervening jurisprudence concerning the distinction 

between time limits that are non-waivable jurisdictional requirements and those that 

are waivable claim-processing rules. See id. at 832–37.3

 Consistent with that 

intervening jurisprudence, we considered whether Congress had “‘rank[ed] [the] 

statutory limitation . . . as jurisdictional,’” id. at 834 (quoting Arbaugh v. Y & H 

Corp., 546 U.S. 500, 516 (2006)), and the “‘context, including [the Supreme] Court’s 

 3

 Just prior to our decision in In re Latture, the BAP conducted a similar 

analysis and reached the same conclusion that Rule 8002(a)(1) is jurisdictional. See 

Hatch Jacobs, LLC v. Kingsley Capital, Inc. (In re Kingsley Capital, Inc.), 423 B.R. 

344, 347–51 (B.A.P. 10th Cir. 2010). 
9 

interpretation of similar provisions in many years past,’” to determine whether 

Rule 8002(a)(1)’s 14-day time limit is “‘jurisdictional,’” id. at 835 (quoting Reed 

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010)). We discussed several factors 

indicating that Rule 8002(a)(1)’s 14-day time limit is a jurisdictional time 

prescription, not a waivable or forfeitable claim-processing rule: 

First, we noted that in 28 U.S.C. § 158(c)(2), Congress had “explicitly 

included a timeliness condition” for taking appeals—“that a notice of appeal be filed 

within the time provided by Rule 8002(a).” In re Latture, 605 F.3d at 837. 

Second, we noted that this “timeliness requirement . . . is located in the same 

section granting the district courts and bankruptcy appellate panels jurisdiction to 

hear appeals from bankruptcy courts—Section 158(a)-(b).” Id.

And third, we observed that in Bowles v. Russell, 551 U.S. 205 (2007), the 

Supreme Court had noted that “time limits for filing a notice of appeal have been 

treated as jurisdictional in American law for well over a century.” Id. at 210 n.2. 

Although Bowles concerned a civil appeal rather than a bankruptcy appeal, we did 

not “believe [that] distinction makes a difference” because “the Advisory Committee 

Notes accompanying Rule 8002(a) state that the rule is an adaptation” of the same 

rule the Court addressed in Bowles, Federal Rule of Appellate Procedure 4(a), In re 

Latture, 605 F.3d at 837 (internal quotation marks omitted), and Bowles and Reed 

Elsevier instruct that we must “look at the [Supreme] Court’s ‘interpretation of 

similar provisions,’” id. (quoting Reed Elsevier, Inc., 559 U.S. at 168). We also 

noted that historically, all circuits had treated Rule 8002(a)(1)’s time limit as 
10 

jurisdictional prior to Kontrick v. Ryan, 540 U.S. 443 (2004), which launched the 

Supreme Court’s recent series of decisions analyzing whether time limits and other 

conditions in statutes and rules are jurisdictional. In re Latture, 605 F.3d at 837. 

Mr. Robertson claims that In re Latture was wrongly decided and should be 

overturned (1) because we misapplied the Supreme Court decisions we discussed in 

In re Latture and (2) in light of decisions the Supreme Court has issued since In re 

Latture that involved or discussed appeals from or to courts that, like bankruptcy 

courts and the BAP, are Article I courts, not Article III courts. But this panel is 

“bound by the precedent of prior panels absent en banc reconsideration or a 

superseding contrary decision by the Supreme Court.” United States v. Meyers, 

200 F.3d 715, 720 (10th Cir. 2000) (emphasis added) (internal quotation marks 

omitted). Therefore, in determining what is binding precedent from this court, we 

will consider only Supreme Court decisions issued after In re Latture that 

Mr. Robertson cites in his opening brief and that are substantively relevant to his 

“Article I” argument.4

 We discern two such cases: Hamer v. Neighborhood Housing 

 4

 In addition to his “Article I” argument, Mr. Robertson suggests that In re 

Latture is in tension with Federal Rule of Bankruptcy Procedure 9030. Aplt. 

Opening Br. at 10–11. Rule 9030 reads: “These rules shall not be construed to 

extend or limit the jurisdiction of the courts or the venue of any matters therein.” We 

rejected this argument in In re Latture, 605 F.3d at 837, holding that § 158(c)(2) 

determined the timeliness component of jurisdiction over appeals from bankruptcy 

courts “by incorporating the time limits prescribed in Rule 8002(a).” None of the 

later Supreme Court decisions Mr. Robertson cites in his opening brief bear on that 

conclusion. Accordingly, this panel will not reconsider the point. Meyers, 200 F.3d 

at 720. 
11 

Services of Chicago, 138 S. Ct. 13 (2017), and Henderson ex rel. Henderson v. 

Shinseki, 562 U.S. 428 (2011) (Henderson).5

 Neither one requires us to overturn In 

re Latture. 

In Hamer, the Supreme Court held that Federal Rule of Appellate Procedure 

4(a)(5)(C)’s 30-day time limit on the length of an extension of time to file a notice of 

appeal in a civil case is a nonjurisdictional claim-processing rule. 138 S. Ct. at 21. 

Facially, that holding has no application here. But Mr. Robertson directs our 

attention to the following statement in Hamer: “The rule of decision our precedent 

shapes is both clear and easy to apply: If a time prescription governing the transfer 

of adjudicatory authority from one Article III court to another appears in a statute, 

the limitation is jurisdictional; otherwise, the time specification fits within the claimprocessing category[.]” Id. at 20 (emphasis added) (citation omitted). Mr. Robertson 

claims the reference to an “Article III court” means that only timeliness prescriptions 

concerning “appeals from one Article III court to another are jurisdictional,” Aplt. 

 5

 In his opening brief, Mr. Robertson also relies on Sebelius v. Auburn 

Regional Medical Center, 568 U.S. 145 (2013), in support of his “Article I” 

argument. The time limits at issue in Sebelius, however, did not involve any federal 

courts but the time to appeal from a Medicare reimbursement determination by 

“[g]overnment contractors, called fiscal intermediaries, . . . to an administrative body 

named the Provider Reimbursement Review Board.” Id. at 821. Sebelius is therefore 

not germane to Mr. Robertson’s “Article I” argument. Consequently, we will discuss 

it no further. In his reply brief, Mr. Robertson relies on another recent case, Patchak 

v. Zinke, 138 S. Ct. 897 (2018), in support of his “Article I” argument. But that 

reliance comes too late. Patchak was decided before Mr. Robertson filed his opening 

brief, but he waited until his reply brief to cite it. We ordinarily do not consider 

matters raised for the first time in a reply brief, including arguments that might 

support a court’s jurisdiction. McKenzie v. U.S. Citizenship and Immigration Servs., 

761 F.3d 1149, 1154–55 (10th Cir. 2014). We decline to do so here. 
12 

Opening Br. at 14, and therefore “appeals from Article I Bankruptcy courts fit into 

the claim processing category,” id. at 11. He posits that Rule 8002(a)(1) sets the time 

limit to appeal from one Article I court (a federal bankruptcy court) to another (the 

BAP) and is therefore nonjurisdictional under Hamer. 

We disagree. Nothing in Hamer indicates that the Court’s analysis turned on 

the constitutional basis for a federal court’s jurisdiction. Instead, the Court’s 

rationale was that the 30-day time limit, which purported to apply “in all 

circumstances,” was set forth only in Appellate Rule 4(a)(5)(C), whereas the relevant 

statute, 28 U.S.C. § 2107(c), set a shorter time limit (14 days) on the length of an 

extension only in cases where “the prospective appellant lacked notice of the entry of 

judgment.” Hamer, 138 S. Ct. at 19 (emphasis omitted). Nor does Hamer stand for 

the proposition that a timeliness prescription for taking an appeal from or to an 

Article I court is per se a claim-processing rule. To the contrary, Hamer cited 

examples of “cases not involving the timebound transfer of adjudicatory authority 

from one Article III court to another” where the Court had “additionally applied a 

clear-statement rule.” Id. at 20 n.9. The Court then explained that the rule requires 

consideration of “context” and the “Court’s interpretations of similar provisions in 

many years past” when determining if Congress provided a clear statement that a 

particular provision was intended to be jurisdictional. Id. (internal quotation marks 

omitted). That explanation confirms In re Latture’s analytical course, which 

included consideration of context and precedent in determining whether Congress has 

“rank[ed]” a time limit as jurisdictional. In re Latture, 605 F.3d at 834. 
13 

For these reasons, nothing in Hamer causes us to question the analysis or 

result in In re Latture on the basis that time limits for filing notices of appeal from or 

to Article I courts are nonjurisdictional claim-processing rules. Other courts have 

agreed. See Wilkins v. Menchaca (In re Wilkins), 587 B.R. 97, 105 (B.A.P. 9th Cir. 

2018) (“[T]here is nothing in Hamer that gives us a reason to reexamine the Ninth 

Circuit’s longstanding construction of the time deadline in Rule 8002(a)” as 

jurisdictional.); In re Jackson, 585 B.R. 410, 412, 415–16, 420–21 (B.A.P. 6th Cir. 

2018) (considering Hamer and concluding that § 158(c)(2)’s time requirement, as 

implemented by Rule 8002(a)(1), is jurisdictional). 

Henderson is even further afield than Hamer. In Henderson, the Supreme 

Court held that a statutory 120-day deadline for filing a notice of appeal from a 

decision by the Board of Veterans’ Appeals to the United States Court of Appeals for 

Veterans Claims was not jurisdictional. 562 U.S. at 431. After noting that none of 

its precedents, including Bowles, controlled the outcome because the case involved 

“review by an Article I tribunal as part of a unique administrative scheme,” the Court 

considered several factors bearing on congressional intent. Id. at 437–38. And it was 

those factors—not the Article I nature of the reviewing court—that informed the 

result. For our purposes, the most significant of those other factors are (1) the 

absence of jurisdictional terms in the statute at issue and (2) the numerous differences 

between “ordinary civil litigation” that “provided the context of [the Court’s] 

decision in Bowles,” and the “informal and nonadversarial” nature of “the system 

Congress that created for the adjudication of veterans’ benefits claims,” id. at 440. 
14 

In contrast, § 158(c)(2) does speak in jurisdictional terms, as discussed in In re 

Latture, 605 F.3d at 837. Furthermore, § 158(c)(2) directs that appeals from 

bankruptcy courts “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.” The Henderson Court found that similar statutory language 

clearly signals an intent that a time limit should be treated as jurisdictional. 562 U.S. 

at 438–39.6

 And bankruptcy proceedings have much more in common with 

adversarial civil litigation than with the nonadversarial scheme discussed in 

Henderson. See Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015) (“A 

bankruptcy case involves an aggregation of individual controversies, many of which 

would exist as stand-alone lawsuits but for the bankrupt status of the debtor.” 

(internal quotation marks omitted)); In re Grasso, 519 B.R. 137, 140 (Bankr. E.D. Pa. 

2014) (“The adversarial nature of bankruptcy proceedings presumes the participation 

of creditors will be driven by their self-interest and not the expectation of 

 6

 Mr. Robertson claims the word “generally” in § 158(c)(2), read in 

conjunction with 28 U.S.C. § 2107(d)’s statement that § 2107, which sets the time for 

taking appeals in civil proceedings, “shall not apply to bankruptcy matters or other 

proceedings under Title 11,” indicates that Congress was delegating to the Supreme 

Court the authority to set how and when appeals are taken from bankruptcy courts. 

In further support, he notes that in 2009, the Supreme Court, which promulgates the 

Federal Rules of Bankruptcy Procedure, extended Rule 8002(a)’s original 10-day 

limit to 14 days. But this argument does not depend on or derive solely from any 

Supreme Court decision issued after In re Latture; Mr. Robertson cites only 

Henderson and only for its definition of claim-processing rules. See Aplt. Opening 

Br. at 9. So even if this were a meritorious argument (and we expressly disavow any 

suggestion that it is), it could not serve as a basis for overturning In re Latture absent 

en banc reconsideration or a superseding Supreme Court decision. Meyers, 200 F.3d 

at 720. We therefore decline to discuss it further. 
15 

payment.”); see also Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 457 

(2004) (Scalia, J., dissenting) (“The similarities between adversary proceedings in 

bankruptcy and federal civil litigation are striking.”). 

In sum, neither Hamer nor Henderson causes us to question the analysis or 

result in In re Latture. We therefore reject Mr. Robertson’s invitation to overturn In 

re Latture and instead reaffirm that Rule 8002(a)(1)’s time limit is jurisdictional. 

C. Late-filed Rule 9023 motion did not toll the appeal period

As noted, Bankruptcy Rule 8002(b)(1) extends or tolls Rule 8002(a)(1)’s 

14-day time period for filing a notice of appeal when certain motions, including a 

Rule 9023 motion, are timely filed, and a Rule 9023 motion must be filed “no later 

than 14 days after entry of judgment.” Fed. R. Bankr. P. 9023. Mr. Robertson argues 

that Rule 9023’s time limit is a claim-processing rule and therefore subject to waiver 

and forfeiture. He notes that the Bank did not contest whether his Rule 9023 motion 

was timely, either in the bankruptcy court or in merits briefing before the BAP, and 

that the bankruptcy court denied it on the merits. He further argues that while the 

bankruptcy court was entertaining the motion, there was no final judgment to appeal. 

Therefore, he posits, it was error for the BAP to consider timeliness of the Rule 9023 

motion sua sponte and dismiss his appeal for lack of jurisdiction. 

The Bank does not argue that Rule 9023’s time limit is jurisdictional but urges 

that an untimely Rule 9023 motion cannot toll the time to file a notice of appeal even 

if the opposing party does not raise a timeliness objection to the bankruptcy court’s 

consideration of the motion, and even if the bankruptcy court disposes of the motion 
16 

on the merits. For reasons that follow, we conclude that Rule 9023’s time limit is a 

claim-processing rule, but an untimely Rule 9023 motion is ineffective to toll the 

time to appeal under Rule 8002(b)(1)(B) even if an opposing party does not object 

and the bankruptcy court disposes of it on the merits, and the BAP can, sua sponte, 

raise the timeliness of a Rule 9023 motion for purposes of determining its 

jurisdiction. 

1. Rule 9023’s time limit is a claim-processing rule

Rule 9023’s time limit appears to be a claim-processing rule; the Bank has not 

suggested it has any statutory basis, and we are aware of none. See United States v. 

Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (explaining that “Bowles . . . clarified 

that court-issued federal procedural rules not derived from statutes are not 

jurisdictional, but rather inflexible claim-processing rules”). But the parties have not 

cited any judicial decision directly on point, and the only case we have uncovered is 

Dixon-Ross v. Hartwell (In re Dixon-Ross), No. 14-18608, 2016 WL 1056776, at *2–

3 (E.D. Pa. Mar. 17, 2016) (unpublished), where the court compared Rule 9023 to 

Federal Rule of Civil Procedure 59(e) and held that the debtor forfeited a defense of 

untimeliness to the bankruptcy court’s consideration of an untimely Rule 9023 

motion by not raising that defense in a timely manner. We agree. 

Analogizing from Rule 59(e) is proper because (1) Rule 9023 expressly states 

that, subject to exceptions not relevant here, “Rule 59 . . . applies in cases under the 

[Bankruptcy] Code,” Fed. R. Bankr. P. 9023; and (2) like Rule 9023, Rule 59(e) 
17 

concerns the time limit (28 days) for filing a motion to alter or amend a judgment.7

 

And all circuits that have considered the nature of Rule 59(e) in the wake of 

Kontrick, Eberhart, and Bowles have held that it is a claim-processing rule because it 

is untethered to any jurisdictional statute. See Suber v. Lowes Home Ctrs., Inc., 

609 F. App’x 615, 616 (11th Cir. 2015) (per curiam) (“Th[e] time limit for filing a 

Rule 59(e) motion is a claims-processing rule, not a jurisdictional rule, because it is 

not grounded in a statutory requirement.” (internal quotation marks omitted)); Blue v. 

Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 584 (7th Cir. 2012) 

(concluding that Rule 59(e) is a “non-jurisdictional procedural rule[]” because it was 

“promulgated by the Supreme Court under the Rules Enabling Act, 28 U.S.C. 

§§ 2071–2077, and therefore ‘do[es] not create or withdraw federal jurisdiction’” 

(quoting Kontrick, 540 U.S. at 453)); Lizardo v. United States, 619 F.3d 273, 277 

(3d Cir. 2010) (same); Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 475 

(6th Cir. 2007) (same); First Ave. W. Bldg., LLC v. James (In re Onecast Media, 

Inc.), 439 F.3d 558, 562 (9th Cir. 2006) (concluding that “Rule 59 is . . . a 

claim-processing rule”); cf. Wilburn v. Robinson, 480 F.3d 1140, 1146 n.11 (D.C. 

 7

 The exceptions in Rule 9023 are found in (1) the rule itself, which provides 

that, in contrast to Rule 59(e)’s 28-day time limit, a Rule 9023 motion must be filed 

“no later than 14 days after entry of judgment,” Fed. R. Bankr. P. 9023; and 

(2) Bankruptcy Rule 3008, which concerns motions for “reconsideration of an order 

allowing or disallowing a claim against the estate,” Fed. R. Bankr. P. 3008. Neither 

exception is relevant to whether we may analogize from case law regarding Civil 

Rule 59(e) to determine if Rule 9023’s time limit is jurisdictional. 
18 

Cir. 2007) (rejecting dissent’s argument that Rule 60(b) is jurisdictional because 

parallel Rule 59(e) is jurisdictional).8

The reasoning of In re Dixon-Ross and our sister circuits with respect to Civil 

Rule 59(e) persuades us that Rule 9023 is a claim-processing rule, and a party can 

waive or forfeit a timeliness objection to the bankruptcy court’s consideration of a 

Rule 9023 motion filed more than 14 days after entry of judgment. In this case, the 

Bank forfeited such an objection. But this does not resolve the more difficult 

question: Whether either an opposing party’s waiver or forfeiture of an untimeliness 

 8

 In Watson v. Ward, 404 F.3d 1230, 1231 (10th Cir. 2005), this court granted 

a certificate of appealability on “[w]hether the district court had jurisdiction to grant 

Respondent’s Rule 59 motion to alter or amend judgment,” which had been filed well 

after what was then a 10-day time limit. We observed that “[w]ith admirable candor, 

Respondents concede that the district court lacked jurisdiction.” Id. We then 

rejected an invitation to uphold the district court’s ruling on the motion by treating it 

as if it was entered pursuant to Rule 60(b). Id. at 1232. But we provided little 

analysis of the jurisdictional issue, instead relying on (1) the appellees’ concession 

that the district court lacked jurisdiction over an untimely Rule 59(e) motion, and 

(2) Brock v. Citizens Bank of Clovis, 841 F.2d 344 (10th Cir. 1988), which predated 

Kontrick and stated in summary fashion that a district court had “correctly denied 

relief on jurisdictional grounds” when it denied a Rule 59(e) motion as untimely, id.

at 347–48. See Watson, 404 F.3d at 1231. And although Watson post-dates 

Kontrick, which acknowledged the distinction between jurisdictional and

claim-processing provisions, it did not discuss Kontrick. Further, two panels of this 

court and one panel of the Tenth Circuit BAP have cited Watson in noting we have 

not yet decided if Rule 59(e) is jurisdictional or a claim-processing rule in light of 

Kontrick and its progeny. See Martinez v. Carson, 697 F.3d 1252, 1258 n.1 

(10th Cir. 2012); Sky Harbor Air Serv., Inc. v. Reams, 491 F. App’x 875, 891 n.17 

(10th Cir. 2012); Onyeabor v. Centennial Pointe Prop. Owners’ Assoc. (In re 

Onyeabor), BAP No. UT-14-047, 2015 WL 1726692, at *6 n.60 (B.A.P. 10th Cir. 

Apr. 15, 2015). None of those three cases decided the issue either. We therefore 

decline to base our analysis of Rule 9023 on Watson’s suggestion that a district court 

lacks jurisdiction to grant an untimely Rule 59 motion. 
19 

argument in the bankruptcy court, or the bankruptcy court’s denial of a Rule 9023 

motion on the merits, rather than for untimeliness, means the untimely Rule 9023 

motion can, under Rule 8002(b)(1)(B), toll the appeal period and hence render timely 

an otherwise untimely notice of appeal. We now turn to that question. 

2. An untimely Rule 9023 motion does not toll the appeal period

The parties cite no judicial decision resolving whether an untimely Rule 9023 

motion can, under Rule 8002(b)(1)(B), toll the time period in which to file a notice of 

appeal to the BAP or a district court, and we have found none.9

 We therefore must 

resort to analogous tolling rules. 

 a. Analogous tolling rules 

Two procedural rules serve as proper analogues: Federal Rules of Appellate 

Procedure 4(a)(4)(A) and 6(b)(2)(A)(i). 

Rule 4(a)(4)(A) provides for tolling the jurisdictional time limit for filing a 

notice of appeal from a district court to a circuit court found in 28 U.S.C. § 2107: “If 

a party files in the district court any of the following motions under the Federal Rules 

of Civil Procedure—and does so within the time allowed by those rules—the time to 

file an appeal runs for all parties from the entry of the order disposing of the last such 

remaining motion.” Rule 59(e) motions are among the tolling motions listed in 

 9

 Although In re Dixon-Ross held that a court has appellate “jurisdiction to 

review a timely appealed order disposing of an untimely motion for reconsideration,” 

2016 WL 1056776, at *3 (internal quotation marks omitted), there is no indication 

that the notice of appeal in that case was untimely and no mention of 

Rule 8002(b)(1)(B). 
20 

Rule 4(a)(4)(A), see Fed. R. App. P. 4(a)(4)(A)(iv), and those “must be filed no later 

than 28 days after the entry of the judgment,” Fed. R. Civ. P. 59(e). As an Advisory 

Committee’s note states, Rule 8002 “is an adaptation of [Appellate] Rule 4(a),” and 

Rule 8002(b) “is essentially the same as [Appellate] Rule 4(a)(4).” Fed. R. Bankr. 

P. 8002 advisory committee’s note. 

Similarly, Appellate Rule 6(b)(2)(A)(i) provides for tolling the jurisdictional 

time limit to file a notice of appeal to a circuit court from a decision by a BAP or a 

district court exercising appellate jurisdiction in a bankruptcy case:10 “If a timely 

motion for rehearing under Bankruptcy Rule 8022 is filed, the time to appeal for all 

parties runs from the entry of the order disposing of the motion.” Fed. R. App. 

P. 6(b)(2)(A)(i). Similar to time limits found in Civil Rule 59(e) and Bankruptcy 

Rule 9023, Bankruptcy Rule 8022(a)(1) has a time limit (14 days) for filing a motion 

for rehearing before a BAP or district court sitting in its appellate capacity, and 

Rule 8022(a)(1) is a nonjurisdictional claim-processing rule, see Tal v. Harth (In re 

Harth), 619 F. App’x 719, 721 (10th Cir. 2015) (recognizing the BAP’s “authority to 

overlook the untimeliness of a [Rule 8022] motion for rehearing on equitable 

grounds”).11

 10 This time limit is jurisdictional. See Taumoepeau v. Mfrs. & Traders Tr. 

Co. (In re Taumoepeau), 523 F.3d 1213, 1216 & n.1 (10th Cir. 2008) (jurisdictional 

timeliness requirement under § 2107 and Appellate Rule 4(a)(1) is applicable to 

bankruptcy appeals to circuit courts by virtue of Appellate Rule 6(b)(1) and Advisory 

Committee notes to Bankruptcy Rule 8001). 

11 We cite unpublished decisions only for their persuasive value consistent 

with 10th Cir. R. 32.1(A). 
21 

 b. Case law

Having established the relevant analogue rules, we turn to case law 

interpreting them. We start with Browder v. Director, Department of Corrections, 

where the Supreme Court held that an untimely post-judgment motion filed under 

either Civil Rule 52(b) or Rule 59 “could not toll the running of time to appeal under 

Rule 4(a)” and therefore the circuit court “lacked jurisdiction to review the 

[underlying order granting habeas relief].” 434 U.S. 257, 265 (1978). Before the 

district court, the opposing party had objected on timeliness grounds to the court’s 

consideration of the motion, but that fact appears to have played no role in the 

Supreme Court’s decision. Instead, the Court relied on what Bowles later 

confirmed—that § 2107(a)’s 30-day time limit for filing a notice of appeal in a civil 

case is “jurisdictional,” id. at 264 (internal quotation marks omitted)—and on 

Rule 4(a)(4)(A)’s purpose, which is “to set a definite point of time when litigation 

shall be at an end, unless within that time the prescribed application has been made; 

and if it has not, to advise prospective appellees that they are freed of the appellant’s 

demands,” id. (internal quotation marks omitted). 

We next consider Chief Judge Sentelle’s dissenting opinion in Obaydullah v. 

Obama, 688 F.3d 784 (D.C. Cir. 2012) (per curiam), and opinions from the First, 

Third, Fourth, Fifth, Seventh, and Eleventh Circuits, almost all of which post-date 

Bowles and follow Browder. These decisions further develop the rationale for the 

rule that untimely post-judgment motions cannot toll the period in which to file a 
22 

notice of appeal even where an opposing party does not object on timeliness grounds 

or the district court disposes of the motion on the merits. 

In Obaydullah, the government did not oppose the district court’s 

consideration of an untimely Rule 59(e) motion, which the court granted. Were it not 

for the tolling effect of that motion, Obaydullah’s notice of appeal would have been 

untimely to appeal the underlying judgment. In determining that the untimely motion 

tolled the appeal period, the majority relied on circuit precedent to conclude that 

Rule 4(a)(4)(A)’s tolling provision for Rule 59(e) motions is a claim-processing rule, 

id. at 789, and therefore “the . . . waiver of any timeliness objection” to an untimely 

Rule 59(e) motion permits a court to consider an appeal from the underlying 

judgment, id. at 791. But in what we consider a persuasive dissent, Chief Judge 

Sentelle argued that “Bowles and Browder . . . should govern [the] case,” id. at 800, 

pointing out that Bowles (1) “clarified that Browder . . . is good law,” (2) “cited 

Browder’s treatment of time limits with approval,” and (3) “explained that [the 

Court’s] recent negative treatment of Robinson[12] and other cases, such as Browder, 

that relied on Robinson for the proposition that the time limit set for a notice of 

appeal is jurisdictional, was ‘dicta,’” id. at 799 (quoting Bowles, 551 U.S. at 210 n.2). 

Judge Sentelle also likened allowing an untimely (and unobjected-to) Rule 59(e) 

motion to toll a jurisdictional appeal period to the “unique circumstances” doctrine 

 12 United States v. Robinson, 361 U.S. 220 (1960). 
23 

the Supreme Court jettisoned in Bowles. See id. at 800 (internal quotation marks 

omitted). 

We also find the Third Circuit’s decision in Lizardo v. United States, 619 F.3d 

273 (3d Cir. 2010), persuasive and instructive. In Lizardo, the government failed to 

object to a Rule 59(e) motion as untimely, and the district court denied it. The Third 

Circuit held that because Rule 59(e) is a claim-processing rule, the government had 

forfeited any timeliness objection it could have made in the district court, but it did 

not forfeit its objection for purposes of Rule 4(a)(4)(A). Relying primarily on 

Browder, the court held that “[a]n untimely Rule 59(e) motion does not toll the time 

for filing an appeal under Rule 4(a)(4)(A). This is true even if the party opposing the 

motion did not object to the motion’s untimeliness and the district court considered 

the motion on the merits.” Id. at 278. The court reasoned that “Rule 4’s main 

purpose is ‘to set a definite point of time when litigation shall be at an end,’” id.

at 279 (quoting Browder, 434 U.S. at 264), and “[h]olding that an untimely 

Rule 59(e) motion is timely for purposes of Rule 4(a)(4)(A) by virtue of the opposing 

party’s failure to object to that untimeliness in the district court would accomplish 

the opposite result,” id. at 280. 

In reaching the conclusion that untimely post-judgment motions cannot toll the 

period for filing a notice of appeal, the Fifth and Seventh Circuits have followed, 

inter alia, Browder and Lizardo. See Overstreet v. Joint Facilities Mgmt., L.L.C. 

(In re Crescent Res., L.L.C.), 496 F. App’x 421, 424 (5th Cir. 2012) (per curiam) 

(holding that an untimely Rule 59(e) motion “will not toll the notice of appeal period, 
24 

even if the district court addressed the late-filed motion on the merits”); Blue v. Int’l 

Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 582–85 (7th Cir. 2012) 

(concluding that, where opposing party had not objected to an impermissible 

extension of the deadline to file a post-trial motion, the district court had jurisdiction 

to hear those motions but they “did not toll the time [appellant] had to file its Notice 

of Appeal”). And in decisions pre-dating Lizardo, the First and Fourth Circuits have 

followed Browder. See Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 

6, 8–11 (1st Cir. 2004) (concluding that under Browder, an untimely Rule 59(e) 

motion did not toll the appeal period even though the district court had denied it on 

the merits); Panhorst v. United States, 241 F.3d 367, 369–70 (4th Cir. 2001) (relying 

on Browder to hold that “[a]n untimely Rule 59(e) motion does not defer the time for 

filing an appeal, which continues to run from the entry of the initial judgment order,” 

where district court had granted motion to consider untimely Rule 59(e) motion then 

denied that motion). In another pre-Lizardo case, the Eleventh Circuit also reached 

the same conclusion, albeit without reliance on Browder. See Green v. Drug Enf’t 

Admin., 606 F.3d 1296, 1302 (11th Cir. 2010) (holding that “Appellate

Rule 4(a)(4)(A) requires [post-judgment] motions be timely to toll the period for 

filing a notice of appeal,” and explaining that “[a]lthough Kontrick and Eberhart

suggest that a district court has jurisdiction to hear an out-of-time Rule 59(e) motion 

if the non-moving party does not object promptly enough (and thus forfeits his ability 

to object to timeliness later), neither case would turn an untimely Rule 59(e) motion 

into a timely one” (footnote omitted)). 
25 

Finally, we have applied Browder in a bankruptcy case with a procedural 

posture analogous to this case. In In re Harth, we concluded that an untimely motion 

for rehearing by the BAP filed under Bankruptcy Rule 8022, which the BAP denied 

on the merits after noting its untimeliness, did not toll the time limit to appeal to this 

court under Appellate Rule 6(b)(2)(A)(i). In support, we relied on Browder, 

explaining that although the BAP had “authority to overlook the untimeliness of a 

motion for rehearing on equitable grounds, that is a separate matter from whether the 

BAP affects our appellate jurisdiction by denying the untimely motion on the merits.” 

619 F. App’x at 721 (emphasis added). We said that whether the appellant was 

“entitled to tolling of the appeal period is itself a jurisdictional issue,” and under 

Bowles, “courts have no authority to create equitable exceptions to jurisdictional 

requirements.” Id. (brackets and internal quotation marks omitted). “We therefore

agree[d] with those circuits holding that a lower court’s discretionary election to 

deny an untimely post-judgment motion on the merits (an equitable action without 

jurisdictional import in that court) does not re-invest that motion with a tolling effect 

for purposes of appellate jurisdiction.” Id. We consider In re Harth’s application of 

Browder in the bankruptcy context to be persuasive. 

The Second, Sixth, Ninth, and D.C. Circuits have concluded that an untimely 

post-judgment motion can toll the appeal period under Appellate Rule 4(a)(4)(A). 

See Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018) (per curiam); Weitzner 

v. Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015); Obaydullah, 688 F.3d at 789;

Nat’l Ecological Found., 496 F.3d at 476. The Eighth Circuit has implied as much. 
26 

See Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 619 (8th Cir. 2008). However, we 

are more persuaded by the contrary view expressed in Browder, Chief Judge 

Sentelle’s dissent in Obaydullah, and the other circuit decisions cited above. 

Accordingly, we hold that an untimely Rule 9023 motion is ineffective to toll 

the time to file a notice of appeal under 28 U.S.C. § 158(c)(2) and Bankruptcy Rule 

8002(a) regardless of whether the bankruptcy court disposes of the motion on the 

merits or whether an opposing party raises in the bankruptcy court a timeliness 

objection to that court’s consideration of the motion. In the latter situation, holding 

otherwise would allow an opposing party’s failure to raise a timeliness objection to 

expand the jurisdictional appeal period, and that would violate the tenet that “a 

court’s subject-matter jurisdiction cannot be expanded to account for the parties’ 

litigation conduct.” Kontrick, 540 U.S. at 456; see Bowles, 551 U.S. at 213 

(explaining that where an “error is one of jurisdictional magnitude, [a litigant] cannot 

rely on forfeiture or waiver to excuse his lack of compliance with [a] statute’s time 

limitations [for filing a notice of appeal]”). 

3. BAP had authority to consider, sua sponte, Rule 9023 

motion’s timeliness

Mr. Robertson complains that the BAP should not have considered the 

timeliness of his Rule 9023 motion sua sponte. But given our reaffirmance that 

Rule 8002(a)(1)’s time limit is jurisdictional, we conclude that the BAP had authority 

to consider sua sponte whether Mr. Robertson’s Rule 9023 motion was timely filed 

for purposes of determining whether the BAP had jurisdiction over his appeal. See 
27 

Henderson, 562 U.S. at 434 (“[F]ederal courts have an independent obligation to 

ensure that they do not exceed the scope of their jurisdiction, and therefore they must 

raise and decide jurisdictional questions that the parties either overlook or elect not to 

press.”) 

IV. Attorney fees

Included with its appellate brief, the Bank summarily requests “attorneys’ fees 

on appeal pursuant to the final orders and judgments made by the Bankruptcy Court, 

the Utah State District Court and the Utah Court of Appeals based upon the loan 

documents entered into between the Bank and [Mr.] Robertson.” Aplee. Resp. 

Br. at 53–54. The statute the Bank cites in support of its request authorizes a court to 

award attorney fees to the prevailing party “in a civil action based upon any 

promissory note, written contract, or other writing executed after April 28, 1986, 

when the provisions of the promissory note, written contract, or other writing allow 

at least one party to recover attorney fees.” Utah Code Ann. § 78B-5-826. 

We deny the request without prejudice to the Bank filing a proper motion that 

complies with applicable procedural rules, including 10th Cir. R. 27 and 39.2, and 

that sets out more fully the legal basis for an award for attorney fees. At a minimum, 

any such motion should (1) identify the “promissory note[s], written contract[s], or 

other writing[s] allow[ing] at least one party to recover attorney fees,” Utah Code 

Ann. § 78B-5-826; (2) discuss whether an appeal from a BAP decision regarding an 

adversary proceeding is “a civil action” within the meaning of § 78B-5-826 and, if 

so, whether excepting from discharge a deficiency judgment in an adversary 
28 

proceeding means that the adversary proceeding is “based upon” the relevant 

“promissory note, written contract, or other writing,” id.; and (3) identify any other 

Utah statutory or case law bearing on the Bank’s entitlement to attorney fees in this 

appeal, see, e.g., Mgmt. Servs. Corp. v. Dev. Assocs., 617 P.2d 406, 409 (Utah 1980) 

(holding “that a provision for payment of attorney’s fees in a contract includes 

attorney’s fees incurred by the prevailing party on appeal as well as at trial, if the 

action is brought to enforce the contract” (emphasis added)). 

V. Conclusion

 We affirm the BAP’s judgment dismissing Mr. Robertson’s appeal for lack of 

jurisdiction. We deny the Bank’s request for attorney fees on appeal without 

prejudice to the Bank filing a proper motion for attorney fees.

Entered for the Court 

Jerome A. Holmes 

Circuit Judge