PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 07-2151

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IN RE: STANLEY J. CATERBONE,

Stanley J. Caterbone, Appellant

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APPEAL FROM THE UNITED STATES DISTRICT 

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 06-cv-05012)

District Judge: Honorable Anita B. Brody

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Submitted Under Third Circuit LAR 34.1(a)

March 17, 2011

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Before: BARRY, CHAGARES and ROTH, Circuit Judges

(Opinion Filed: April 4, 2011)

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Stanley J. Caterbone, Pro se

Advanced Media Group

1250 Fremont Street

Lancaster, PA 17603

William Kanter, Esq.

Jeffrica J. Lee, Esq.

Appellate Staff, Civil Division, Room 7537

Department of Justice

950 Pennsylvania Ave., NW

Washington, DC 20530-0001
2

Catherine L. Sakach, Esq.

Court Appointed Amicus Curiae on Behalf of the Court

Duane Morris LLP

1940 Route 70 East

Cherry Hill, NJ 08003

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OPINION OF THE COURT

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BARRY, Circuit Judge

This case involves an untimely notice of appeal to the 

District Court after the Bankruptcy Court‟s dismissal, for 

cause, of a Chapter 11 petition. The question before us is 

whether, pursuant to 28 U.S.C. § 158(c)(2) and the Federal 

Rules of Bankruptcy Procedure, an untimely filing such as the 

one at issue here deprives subsequent reviewing courts—here, 

both the District Court and this Court—of jurisdiction over 

the appeal. We conclude that it does. Accordingly, we will 

dismiss the instant appeal and remand to the District Court 

with instructions to dismiss the appeal to it from the 

Bankruptcy Court for lack of subject matter jurisdiction.

I. Background

Appellant Stanley J. Caterbone filed a Chapter 11 

bankruptcy petition in May 2005. The United States Trustee 

subsequently moved to dismiss the petition for cause, and the 

Bankruptcy Court granted the motion on October 3, 2006, 

citing various substantive and procedural deficiencies. See 11 

U.S.C. § 1112(b). 

The order of dismissal was mailed to Caterbone by 

first class mail on October 5, 2006. On October 16, he sent a 

notice of appeal by first class mail and electronic mail. 

However, the notice of appeal was filed with the District 

Court on October 19, rendering it untimely because it 

occurred outside the ten-day window, then in place, for filing 
3

a notice of appeal. See Fed. R. Bankr. P. 8002(a) (2006).1 It 

is undisputed that Caterbone did not file a “request to extend 

the time for filing a notice of appeal ... by written motion ...

before the time for filing a notice of appeal ha[d] expired,”

nor did the Bankruptcy Court grant such an extension 

following “a motion filed not later than 20 days after the 

expiration of the time for filing a notice of appeal ... upon a 

showing of excusable neglect.” Id. 8002(c)(2).

Despite its untimely filing, Caterbone‟s appeal was 

docketed in the District Court on November 14, and the 

Trustee did not argue that it was untimely. On March 15, 

2007, the Court sua sponte dismissed the appeal, citing

Caterbone‟s failure to comply with Fed. R. Bankr. P. 8006, 

which requires that a petitioner designate “items to be 

included in the record on appeal and a statement of the issues 

to be presented.” Caterbone appealed to this Court. Shortly 

thereafter, the Trustee moved to dismiss the appeal, citing, for 

the first time, Caterbone‟s initial untimely notice of appeal, 

and arguing that, as a result of the untimely filing, the District 

Court lacked subject matter jurisdiction.

Following various intervening events, including the 

appointment of amicus curiae, the case is now before us. The 

Trustee argues that, consistent with Bowles v. Russell, 551 

 

1

In amending Fed. R. Bankr. P. 8002(a), effective 

December 1, 2009, to expand the time for filing a notice of 

appeal to fourteen days, the Supreme Court‟s accompanying 

Order provided that the amendment “shall govern in all 

proceedings in bankruptcy cases thereafter commenced and, 

insofar as just and practicable, all proceedings then pending.” 

Supreme Court of the United States, Order Amending Federal 

Rules of Bankruptcy Procedure (Mar. 26, 2009). The Trustee 

argues that the “just and practicable” rationale is inapplicable 

here. Moreover, the Trustee notes that Caterbone‟s notice of 

appeal was dated, but not filed, on October 16, and argues, 

persuasively in our view, that even if the expanded period 

were to apply, the notice of appeal was still untimely because 

it was filed the sixteenth day after entry of the Bankruptcy 

Court‟s order.
4

U.S. 205 (2007), Section 158(c)(2) established a mandatory, 

jurisdictional deadline that statutorily encompasses Rule 

8002(a)‟s specified timeline for appealing the judgment of a 

bankruptcy court, such that the timeline is not akin to a

freestanding, waivable “claim-processing rule” within the 

meaning of Kontrick v. Ryan, 540 U.S. 443 (2004). Amicus 

argues similarly. Caterbone, on the other hand, elides the 

Bowles analysis and argues, inter alia, that his untimely filing 

should be addressed, and excused, under the standard of 

“excusable neglect” set forth in Pioneer Inv. Servs. Co. v. 

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). 

For the reasons explained below, we hold that the 

prescribed timeline within which an appeal from a bankruptcy 

court must be filed is mandatory and jurisdictional, thus 

affirming, in light of Bowles, the rule that we applied in 

Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d 

Cir. 1997). 

II. Jurisdiction and Standard of Review

Jurisdiction is the threshold issue in this case, and we 

must address its relevance both to the decision rendered by 

the District Court, and to our review of that decision. Thus, 

as an initial matter, we note that we have jurisdiction over the 

final decision that the District Court rendered on Caterbone‟s 

appeal from the Bankruptcy Court. 28 U.S.C. § 158(d)(1). 

Our authority includes reviewing whether the District Court‟s 

own exercise of jurisdiction, per § 158(a), was proper. That 

is because “subject-matter jurisdiction, because it involves a 

court‟s power to hear a case, can never be forfeited or 

waived[, such that courts] ... have an independent obligation 

to determine whether subject-matter jurisdiction exists, even 

in the absence of a challenge from any party.” Arbaugh v. Y 

& H Corp., 546 U.S. 500, 514 (2006) (internal quotation 

marks and citation omitted). 

Ordinarily, we apply plenary review to final orders of

a district court sitting as an appellate court reviewing the 

decision of a bankruptcy court. In re Carnegie Ctr. Assocs., 

129 F.3d 290, 294 (3d Cir. 1997). However, following from 
5

our obligation to determine the threshold issue of subject 

matter jurisdiction, see Arbaugh, 546 U.S. at 514, and where, 

as here, a party “contest[s] our jurisdiction and that of the 

District Court, ... [w]e exercise de novo review over [the] 

question[] of subject matter jurisdiction.” Great W. Mining & 

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d 

Cir. 2010). This is the case even where, again as here, a

district court “exercis[es its] jurisdiction” and dismisses a 

cause of action for some other reason. Id. If our independent 

review yields the conclusion that the District Court lacked 

subject matter jurisdiction over an appeal from the 

Bankruptcy Court, the appropriate disposition is dismissal of 

the appeal. In re Caribbean Tubular Corp., 813 F.2d 533, 

535 (1st Cir. 1987) (holding that where it is found that a 

district court lacked appellate jurisdiction over a bankruptcy 

court order, the court of appeals must dismiss the appeal to it, 

and remand to the district court with instructions to vacate its 

order and to dismiss the appeal from the bankruptcy court). 

III. Discussion

An appeal from a decision of a bankruptcy court is 

subject to the requirements of 28 U.S.C. § 158(c)(2), which 

provides that 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.” When Caterbone filed

his appeal, that rule provided, in relevant part, that “notice of 

appeal shall be filed with the clerk within 10 days of the date 

of the entry of the judgment, order, or decree appealed from.” 

Fed. R. Bankr. P. 8002(a) (2006). 

Although Kontrick affirmed as “„axiomatic‟” the 

proposition that requirements contained in a bankruptcy rule 

alone are not jurisdictional (and, hence, are waivable), 540 

U.S. at 453 (citation omitted), Section 158 provides the 

statutory basis for the courts‟ jurisdiction over bankruptcy 

appeals. See 28 U.S.C. § 158(a) & (d) (specifying 

circumstances of “district courts[‟] ... jurisdiction to hear 

appeals” and the “courts of appeals[‟] ... jurisdiction”). 

Because Section 158 also specifies the time within which an 
6

appeal must be taken—i.e., “in the time provided by Rule 

8002”—that requirement is jurisdictional. As Bowles

clarified, both acknowledging and distinguishing Kontrick, 

“the taking of an appeal within [a statutorily] prescribed time 

is mandatory and jurisdictional.” 551 U.S. at 209 (internal 

quotation marks and citations omitted). Accordingly, “failure 

to file [a] notice of appeal in accordance with the statute 

therefore deprive[s] ... [courts] of jurisdiction[, and bars a 

party from] ... rely[ing] on forfeiture or waiver to excuse [a]

lack of compliance with the statute‟s time limitations.” Id. at 

213 (citation omitted). 

Here, even though it is a bankruptcy rule that specifies 

the time within which an appeal must be filed, the statutory 

incorporation of that rule renders its requirement statutory 

and, hence, jurisdictional and non-waivable. As the Supreme 

Court recently observed, while “the distinction between 

jurisdictional conditions [i.e., à la Bowles] and claimprocessing rules [i.e., à la Kontrick] can be confusing in 

practice[,] ... Bowles stands for the proposition that context, 

including th[e] Court‟s interpretation of similar provisions in 

many years past, is relevant to whether a statute ranks a 

requirement as jurisdictional.” Reed Elsevier, Inc. v. 

Muchnick, 130 S. Ct. 1237, 1243, 1247-48 (2010). 

Beyond the fact that the statutory text of Section 

158(c)(2) incorporates a time condition, historical context 

also supports our holding. Prior to Kontrick and Bowles, we

regarded Rule 8002(a)‟s time limit for filing a notice of 

appeal as jurisdictional. See Shareholders, 109 F.3d at 879; 

Whitemere Dev. Corp., Inc. v. Cherry Hill Twp., 786 F.2d 

185, 187 (3d Cir. 1986); In re Universal Minerals, Inc., 755 

F.2d 309, 311 (3d Cir. 1985). Kontrick—and, later, Eberhart 

v. United States, 546 U.S. 12 (2005)—arguably provided the 

opportunity to question whether this rule remained correct. 

That being said, a careful reading of Kontrick, Bowles, and 

Reed Elsevier confirms that the rule we affirmed in

Shareholders, Whitemere, and Universal Minerals remains 

the rule today. 

In holding that time constraints for objecting to a 
7

discharge in bankruptcy are non-jurisdictional “claimprocessing rules,” Kontrick noted that Congress‟s statutory 

grant of jurisdiction to the courts to adjudicate discharges in 

bankruptcy contains no reference to a time condition. 540 

U.S. at 452-53 (citing 28 U.S.C. § 157(b)(1), (b)(2)(I), and

(b)(2)(J)).2 To the contrary, in holding that the statutorilyprescribed time provision for filing an appeal in a federal 

habeas corpus proceeding is jurisdictional, Bowles expressly 

stated: “Today we make clear that the timely filing of a notice 

of appeal in a civil case is a jurisdictional requirement.” 551 

U.S. at 214. Moreover, notwithstanding the fact that Arbaugh 

could be read to state that a clear statement rule applies to 

Congress‟s identification of a statutory limitation as 

jurisdictional, see 546 U.S. at 515-16,

3

Reed Elsevier more 

recently clarified that, again à la Bowles, 

the relevant question ... is not ... whether [a 

particular statutory provision] itself has long 

 

2

Likewise, in Eberhart, 546 U.S. at 16, 21, the Court 

concluded that time provisions in the Federal Rules of 

Criminal Procedure were non-jurisdictional, and thus 

waivable. In Arbaugh, 546 U.S. at 515, the Court concluded 

that a numerical provision affecting Title VII claims, but 

which was separate from Title VII‟s jurisdictional provision, 

thereby was not jurisdictional.

3 As the Court stated in Arbaugh:

[W]e think it the sounder course to refrain from 

constricting § 1331 or Title VII‟s jurisdictional 

provision, and to leave the ball in Congress‟

court. If the Legislature clearly states that a 

threshold limitation on a statute‟s scope shall 

count as jurisdictional, then courts and litigants 

will be duly instructed and will not be left to 

wrestle with the issue. But when Congress does 

not rank a statutory limitation on coverage as 

jurisdictional, courts should treat the restriction 

as nonjurisdictional in character.

546 U.S. at 515-16 (internal citations and reference

omitted).
8

been labeled jurisdictional, but whether the type 

of limitation that [it] imposes is one that is 

properly ranked as jurisdictional absent an 

express designation. The statutory limitation in 

Bowles was of a type that we had long held did 

“speak in jurisdictional terms” even absent a 

“jurisdictional” label, and nothing about [that 

provision‟s] text or context, or the historical 

treatment of that type of limitation, justified a 

departure from this view.

130 S. Ct. at 1248.

It is evident, in light of Shareholders, Whitemere, and 

Universal Minerals, that we “ha[ve] long held” that Section 

158(c)(2)‟s incorporation of the filing timeline specified in 

Rule 8002(a) “speak[s] in jurisdictional terms[,] even absent a 

jurisdictional label, and [that] nothing about [its] text or 

context, or [its] historical treatment ... justifie[s] a departure 

from this view.” See Reed Elsevier, 130 S. Ct. at 1248. 

Because it was both prior to and shortly after Reed Elsevier 

that we affirmed in non-precedential opinions that the time 

requirement for filing a bankruptcy appeal is jurisdictional, 

we now take the occasion to so hold in a precedential 

opinion.4 Doing so comports with the fact that, unlike the 

rules that Eberhart and Kontrick held were non-jurisdictional, 

Rule 8002(a)‟s time limit is rooted in a congressionallyenacted statute. See Fed. R. Bankr. P. 8002, advisory

committee note (noting that “th[e] rule is an adaptation of”

Fed. R. App. P. 4(a)); see also Bowles, 551 U.S. at 212, 213

(“[A] statute-based filing period for civil cases is 

jurisdictional. . . . Because Congress decides whether federal 

courts can hear cases at all, it can also determine when, and 

under what conditions, federal courts can hear them. Put 

another way, the notion of subject-matter jurisdiction 

obviously extends to ... when Congress prohibits federal 

courts from adjudicating an otherwise legitimate class of 

 

4

For purposes of reference only, we note In re Taylor, 

343 F. App‟x 753, 755 (3d Cir. 2009), and In re Jacobowitz, 

384 F. App‟x 93, 94 (3d Cir. 2010). 
9

cases after a certain period has elapsed from final judgment.” 

(internal quotation marks and citations omitted)). Taking all 

of this into consideration, we conclude that the rule we 

enunciated in Shareholders remains good law.

5

 

Given the fact that subject matter jurisdiction over 

Caterbone‟s appeal to the District Court was, and is, 

lacking—and that jurisdictional defect also bars us from 

reviewing the merits of his appeal to us—we need not address

the Court‟s dismissal of his appeal for failure to prosecute. 

Nor need we address Caterbone‟s argument that his 

“excusable neglect” saves his untimely filing, given the clear 

text of Rule 8002 and the guidance of Shareholders: 

Rule 8002(c) ... requires that even in cases of 

excusable neglect, the issue must be raised and 

the appeal filed within the ... window of Rule 

8002 (Rule 8002(a)‟s [timeline] for the appeal + 

8002(c)‟s [timeline] for the extension). The 

rule does not allow a party to claim excusable 

neglect after the [time period] ha[s] expired.

109 F.3d at 879 (internal citations omitted). Finally, we 

decline to address Caterbone‟s remaining arguments, because

they do not pertain to the threshold issue of jurisdiction. 

IV. Conclusion

For the foregoing reasons, we will dismiss the instant 

appeal and remand to the District Court with instructions to 

dismiss Caterbone‟s appeal from the Bankruptcy Court for 

lack of subject matter jurisdiction. 

 

5 Our conclusion is consistent with the holdings of our 

sister circuits that have affirmed that the filing timeline for 

bankruptcy appeals is jurisdictional. See In re Latture, 605 

F.3d 830, 837 (10th Cir. 2010); In re Wiersma, 483 F.3d 933, 

938 (9th Cir. 2007); In re B.A.R. Entm’t Mgmt., Inc., 2010 

WL 4595554 (2d Cir. Nov. 15, 2010) (citing In re Siemon, 

421 F.3d 167, 169 (2d Cir. 2005)).