RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0341p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: LATASHA TENNIAL,

Debtor.

___________________________________________

LATASHA TENNIAL,

Appellant,

v.

REI NATION, LLC,

Appellee.

┐

│

│

│

│

│

│

│

│

│

│

│

┘

No. 20-5358

Appeal from the United States District Court for the Western District of Tennessee at Memphis;

2:19-cv-02688—John Thomas Fowlkes, Jr., District Judge.

United States Bankruptcy Court for the Western District of Tennessee at Memphis;

Nos. 2:18-bk-28470—Jennie D. Latta, Judge.

Decided and Filed: October 28, 2020

Before: SUTTON, COOK, and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Russell W. Savory, BEARD & SAVORY, PLLC, Memphis, Tennessee, for 

Appellee. LaTasha Tennial, Memphis, Tennessee, pro se.

_________________

OPINION

_________________

SUTTON, Circuit Judge. LaTasha Tennial appealed a ruling in her bankruptcy case after 

the deadline for doing so had passed. The district court dismissed the appeal for lack of subject 

>
No. 20-5358 Tennial v. REI Nation Page 2

matter jurisdiction. The deadline does not create a limitation on our subject matter jurisdiction. 

But we agree that Tennial missed the deadline and that the deadline is mandatory. We therefore 

affirm the dismissal on this independent ground.

After Tennial’s mortgage company foreclosed on her home, she filed a Chapter 13 

bankruptcy petition. Her petition triggered an automatic stay of any further action against her 

home, allowing her to continue living there. 11 U.S.C. § 362. But the next year, REI Nation 

bought Tennial’s home from the mortgage company and moved the bankruptcy court to end the 

automatic stay. The bankruptcy court terminated the stay in an order entered on September 12, 

2019. Tennial’s attorney received electronic notice of the order the same day, and the court 

mailed a copy to Tennial by first class mail on September 14.

Under Rule 8002(a)(1) of the Federal Rules of Bankruptcy Procedure, Tennial had 14 

days—through September 26, 2019—to appeal the bankruptcy court’s order to district court. 

Tennial didn’t file her notice of appeal until October 9, 2019. At the bottom of her notice, she 

wrote, “I am filing this notice of Appeal after the allowed time because I did not receive a copy 

of the order until September 26, 2019, via U.S. Postal Service.” R.1-1 at 2.

REI asked the district court to dismiss Tennial’s appeal as untimely. The court granted 

REI’s motion, concluding that it lacked jurisdiction to review the order because Tennial waited 

too long to file the appeal. The appeal deadline could not be extended, the court added, because 

Tennial failed to move for an extension under Bankruptcy Rule 8002(d). Tennial appealed to 

this court.

A threshold question is whether the bankruptcy appeal deadline imposes a jurisdictional 

requirement. 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 relevant federal statute, 28 U.S.C. § 158(c)(2), provides that 

bankruptcy appeals “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.”
No. 20-5358 Tennial v. REI Nation Page 3

We have treated this deadline as jurisdictional before, first in In re Dick, 187 F.3d 635 

(6th Cir. 1999), then in an unpublished decision in Schwab Industries, Inc. v. Huntington

National Bank, 679 F. App’x 397 (6th Cir. 2017). But we have yet to look at the question in the 

light cast by the Supreme Court’s recent guidance about jurisdictional requirements.

As we see it, the 14-day deadline created by Bankruptcy Rule 8002(a)(1) does not create 

a jurisdictional limit on the federal courts.

First, the Supreme Court has been rigorous and vigorous in distinguishing between 

requirements that go to the subject matter jurisdiction of the federal courts and requirements that 

are merely mandatory. To the end of simplifying and clarifying the issue, Justice Ginsburg 

wrote a trailblazing unanimous decision for the Court that created a clear-statement rule for the 

daunting array of settings in which the question arises. Congress must “clearly state[]” that the 

requirement implicates the judiciary’s subject matter jurisdiction—its “statutory or constitutional 

power to adjudicate the case”—before the federal courts will treat the requirement as a nonwaivable and non-forfeitable jurisdictional imperative. Arbaugh v. Y&H Corp., 546 U.S. 500, 

515 (2006); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). The goal, the Court 

said, is to rein in the “profligate” and imprecise use of “jurisdiction.” Arbaugh, 546 U.S. at 510. 

Consistent with that goal and consistent with the clear-statement rule, the Court has treated most 

of the procedural requirements that have come before it since then as not being jurisdictional in 

the constitutional sense of the term. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 

(2010); United States v. Kwai Fun Wong, 575 U.S. 402 (2015); Musacchio v. United States, 

136 S. Ct. 709 (2016).

That does not seem like a hard principle to apply here. Congress did not state that this 

14-day deadline establishes a jurisdictional prerequisite. In the relevant statute, Congress merely 

referred to any appeal deadlines created by the Bankruptcy Rules. 28 U.S.C. § 158(c)(2). 

Nothing about that reference indicates that Congress meant to attach subject matter jurisdiction 

consequences to deadlines established by the Bankruptcy Rules. Much less did it do so “clearly” 

with that modest reference.
No. 20-5358 Tennial v. REI Nation Page 4

Second, and more concretely, the Court has handled four cases involving rule-based 

deadlines in recent years, and each of them suggests that the Bankruptcy Rule’s 14-day appeal 

deadline is not jurisdictional. Here are the rules at issue in each case:

* the 60-day deadline for a creditor to object to its debtor’s discharge under Bankruptcy 

Rules 4004(a) and (b) and 9006(b)(3), Kontrick v. Ryan, 540 U.S. 443 (2004);

* the 7-day deadline to move for a new trial on grounds other than newly discovered 

evidence under Criminal Rules 33 and 45(b)(2), Eberhart v. United States, 546 U.S. 12 (2005) 

(per curiam);

* the 14-day time limit for extending the civil appeal deadline if the losing party does not 

receive notice of the decision under Appellate Rule 4(a)(6), Bowles v. Russell, 551 U.S. 205 

(2007); and

* the 30-day time limit for extending the civil appeal deadline if the losing party receives 

notice of the appealable judgment under Appellate Rule 4(a)(5)(C), Hamer v. Neighborhood 

Hous. Servs. of Chi., 138 S. Ct. 13 (2017).

How did the Court resolve these cases? Based on this straightforward principle: Rulebased deadlines are jurisdictional when they implement an appeal deadline created by Congress. 

Otherwise, they are not. Thus: A bankruptcy appellate deadline is not jurisdictional when 

Congress did not create it. Kontrick, 540 U.S. at 448, 453–54. A criminal procedure deadline to 

move for a new trial is not jurisdictional when Congress did not create it. Eberhart, 546 U.S. at 

13, 15–19. A civil appellate deadline is not jurisdictional when Congress did not “set[] the 

time.” Hamer, 138 S. Ct. at 17. But a civil appellate deadline is jurisdictional when the rule 

creates a “specific[]” appeal deadline that is “set forth in a statute.” Bowles, 551 U.S. at 213, 

210. The answer to how to characterize each rule-based deadline comes down to this: “If a time 

prescription governing the transfer of adjudicatory authority [to an] Article III court . . . appears 

in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claimprocessing category.” Hamer, 138 S. Ct. at 20 (quotation omitted). 
No. 20-5358 Tennial v. REI Nation Page 5

Under this straightforward principle, Bankruptcy Rule 8002(a)(1)’s appeal deadline falls 

on the nonjurisdictional side of the line. It does not implement an appeal deadline set by 

Congress. At no place in 28 U.S.C. § 158(c)(2) does Congress create an appeal deadline for 

these appeals, whether 10 days, 14 days, or 30 days. It merely references the deadline created by 

the Advisory Committee on Bankruptcy Rules and the Standing Committee on Rules of Practice 

and Procedure under the Rules Enabling Act. 28 U.S.C. §§ 2071–77. If deadlines established by 

the rules process alone created jurisdictional limits, Kontrick, Eberhart, and Hamer would have 

come out differently. And Bowles would not have wasted its breath in talking about how that 

rule-based deadline implemented a statutory requirement.

No less significantly, if deadlines established by the rules process alone created 

jurisdictional limits, that would mean the rules committee could change the scope of federal 

court subject matter jurisdiction on its own. That’s good work if you can get it, to be sure. But 

the Constitution gives that power to Congress alone. See U.S. Const. art. III, § 1; see also 

Kontrick, 540 U.S. at 452. Nor is this possibility a mere product of a fevered imagination. The 

rules committees, as it happens, have changed the bankruptcy appeal deadline since 28 U.S.C. 

§ 158 was enacted—from 10 to 14 days. See Fed. R. Bankr. P. 8002 advisory committee’s note 

to 2009 amendment. How, then, can we say that Congress “specifi[ed]” a deadline that the rules 

committee has changed on its own with no input from the National Legislature? Bowles, 551 

U.S. at 213. We have no answer. 

All of the intermediate appellate authority on the issue, we must acknowledge, runs in the 

other direction over the last ten years. The cases uniformly conclude that the Bankruptcy Rule’s 

14-day deadline creates a jurisdictional threshold. See, e.g., In re Caterbone, 640 F.3d 108 (3rd 

Cir. 2011); In re Berman-Smith, 737 F.3d 997 (5th Cir. 2013) (per curiam); In re SobczakSlomczewski, 826 F.3d 429 (7th Cir. 2016) (per curiam); In re Latture, 605 F.3d 830 (10th Cir. 

2010). While the contrary arguments embraced by our sister circuits offer plenty of food for 

thought, we do not think they hold up. 

Some courts note that the 14-day bankruptcy appeal deadline is akin to the civil appeal 

deadline in Appellate Rule 4(a)(6) that Bowles treated as jurisdictional. In support, they point 

out that the Advisory Committee on Bankruptcy Rules stated that Rule 8002 “is an adaptation of 
No. 20-5358 Tennial v. REI Nation Page 6

Fed. R.App. P. 4(a),” the Rule addressed in Bowles. In re Berman-Smith, 737 F.3d at 1002 

(quotation omitted); see also In re Latture, 605 F.3d at 837; In re Caterbone, 640 F.3d at 113. 

But Hamer also addressed an appeal deadline from Appellate Rule 4(a), namely Rule 4(a)(5)(C). 

And it refused to treat that deadline as jurisdictional. Why? Because it did not implement a 

statutory deadline in the same way that Appellate Rule 4(a)(6), the subject of Bowles, 

implemented Congress’s time limit for extending the civil appeal deadline in 28 U.S.C. § 2107. 

Hamer, 138 S. Ct. at 20–22. If different appeal deadlines within Appellate Rule 4(a) have 

different jurisdictional qualities, the reality that the bankruptcy appeal deadline grows out of 

Appellate Rule 4(a) tells us nothing.

Some courts insist that Bankruptcy Rule 8002(a)(1) enacts a deadline prescribed by 

Congress. By referencing “the time provided by Rule 8002,” they say, § 158(c)(2) “specifies the 

time within which an appeal must be taken.” In re Caterbone, 640 F.3d at 111 (quotation 

omitted); see also In re Berman-Smith, 737 F.3d at 1001–02; In re Sobczak-Slomczewski, 

826 F.3d at 432; In re Latture, 605 F.3d at 837. Any effort to separate the statutory 

incorporation of a rule’s deadline from the statutory creation of a deadline, they say, amounts to 

a “distinction without a difference.” In re Berman-Smith, 737 F.3d at 1001 (quotation omitted); 

In re Latture, 605 F.3d at 836. But there is a difference—the difference indeed that explains all 

four of the Court’s rule-deadline cases. When the rule deadline grows out of one truly 

“specifi[ed]” by Congress, Bowles, 551 U.S. at 213, it is jurisdictional. When the rule deadline 

grows out of the rules process alone, it is not. At least one of these cases might have come out 

the other way if this were a “distinction without a difference.” The statute corresponding to the 

deadline at issue in Eberhart mentioned the Criminal Rule that established the deadline. 

18 U.S.C. § 3446 says “See Federal Rules of Criminal Procedure” and “Granting of new trial, 

grounds, and motion, Rule 33.” Yet no Justice in that case thought that sufficed. 

There’s good reason it did not suffice. It would mean that Congress could delegate 

authority to establish the subject matter jurisdiction of the federal courts to the rules committees 

through the Rules Enabling Act of 1934. That would come as a surprise. “Only Congress,” it’s

long been thought, “may determine a lower federal court’s subject-matter jurisdiction,” making it 
No. 20-5358 Tennial v. REI Nation Page 7

“axiomatic that such rules do not create or withdraw federal jurisdiction.” Kontrick, 540 U.S. at 

452–53 (quotation omitted).

But, these courts insist, Bowles already crossed that line when it said that, “[i]f rigorous 

[jurisdictional] rules like the one applied today are thought to be inequitable, Congress may 

authorize courts to promulgate rules that excuse compliance with the statutory time limits.” 

Bowles, 551 U.S. at 214. Invoking this statement in Bowles, the Tenth Circuit reasoned that 

“[a]uthorizing courts to make exceptions to jurisdictional time limits is effectively the same as 

authorizing courts to set the time limit in the first instance.” In re Latture, 605 F.3d at 837. The 

Fifth Circuit followed suit. In re Berman-Smith, 737 F.3d at 1002–03.

But the one point does not necessarily follow from the other. The statute at issue in 

Bowles was 28 U.S.C. § 2107. Subsection (c) of the statute says that a district court may “extend 

the time for appeal upon a showing of excusable neglect or good cause.” There’s nothing 

unusual, or non-delegable, about Congress empowering district courts to find excusable neglect 

with respect to a jurisdictional deadline in a given case or with Congress empowering the rules 

committees to promulgate a rule that defines “excusable neglect or good cause.” That’s simply 

an implementation of the statutory imperative—and often a form of permissible delegable 

factfinding to boot. See, e.g., Touby v. United States, 500 U.S. 160 (1991). And it’s a distant cry 

from delegating authority over the creation of the deadline in the first instance.

But even if Congress had such authority (doubtful), it did not clearly exercise it in this 

instance. Merely invoking the Bankruptcy Rule in the statute without identifying any time limit 

does not create a clear jurisdictional limit on the federal courts.

That leaves the concern that this bankruptcy appeal deadline has long been treated as 

jurisdictional, prompting fears that we would upset settled expectations if we switched gears 

now. See In re Caterbone, 640 F.3d at 112; see also In re Latture, 605 F.3d at 831–32; In re 

Berman-Smith, 737 F.3d at 1000. Bowles, it is true, relied on stare decisis considerations in 

continuing to treat as jurisdictional the time limits spelled out in 28 U.S.C. § 2107. 551 U.S. at 

209–13. But Arbaugh has altered all kinds of provisions once thought to be “jurisdictional” in 

order to bring discipline to a word that had come to have “many, too many, meanings.” 
No. 20-5358 Tennial v. REI Nation Page 8

Arbaugh, 546 U.S. at 510 (quotation omitted). When it comes to rule-based deadlines, the 

Court’s four cases have created an easy-to-implement benchmark: If the rule-based deadline 

honors a congressionally specified appeal deadline, it is jurisdictional; if not, not. Hamer, 138 S. 

Ct. at 20. Any effort to unscramble that approach now will impair far more reliance interests and 

unsettle far more expectations than it will protect. 

All in all, Bankruptcy Rule 8002(a)(1)’s 14-day time limit for filing a notice of appeal 

does not create a jurisdictional imperative.

Even so, the deadline remains mandatory. Bankruptcy appeals “shall be taken in . . . the 

time provided by Rule 8002 of the Bankruptcy Rules,” 28 U.S.C. § 158(c)(2), and Bankruptcy 

Rule 8002(a)(1) provides that an appeal “must be filed . . . within 14 days.” (Emphases added). 

Tennial missed the deadline, and REI invoked the deadline in its motion to dismiss. Nor does 

the explanation she placed on the notice of appeal excuse the dilatory filing. Her lawyer had 

timely notice of the district court’s order. And while Tennial protests that her note should be 

treated as a motion for an extension of time under Bankruptcy Rule 8002(d), that same rule 

precludes extensions when a party appeals from an order “grant[ing] relief from an automatic 

stay.” Fed. R. Bankr. P. 8002(d)(2)(A). That’s just what we have: Tennial attempted to appeal 

the bankruptcy court’s order granting REI relief from an automatic stay.

Because the appeal deadline is mandatory, because Tennial missed it, and because REI 

raised the issue in its motion to dismiss, the appeal must be dismissed as dilatory. 

We affirm the dismissal on this ground.