Leave to Appeal from an Interlocutory Order or Decree Under 28 U.S.C. § 158(a)(3)

U.S Code last checked for updates: Feb 21, 2025

Rule 8004.

(a)

Notice of Appeal and Accompanying Motion for Leave to Appeal.

To appeal under 28 U.S.C. § 158(a)(3) from a bankruptcy court’s interlocutory order or decree, a party must file with the bankruptcy clerk a notice of appeal under Rule 8003(a). The notice must:

(1)

be filed within the time allowed by Rule 8002;

(2)

be accompanied by a motion for leave to appeal prepared in accordance with (b); and

(3)

unless served electronically using the court’s electronic-filing system, include proof of service in accordance with Rule 8011(d).

(b)

Content of the Motion for Leave to Appeal; Response.

(1)

Content. A motion for leave to appeal under 28 U.S.C. § 158(a)(3) must include:

(A)

the facts needed to understand the question presented;

(B)

the question itself;

(C)

the relief sought;

(D)

the reasons why leave to appeal should be granted; and

(E)

a copy of the interlocutory order or decree and any related opinion or memorandum.

(2)

Response. Within 14 days after the motion for leave is served, a party may file with the district or BAP clerk a response in opposition or a cross-motion.

(c)

Sending the Notice of Appeal and Motion for Leave to Appeal; Docketing the Appeal; Oral Argument Not Required.

(1)

Sending to the District Court or BAP. If a BAP has been established to hear appeals from that district—and an appellant has not elected to have the appeal heard in the district court—the bankruptcy clerk must promptly send to the BAP clerk the notice of appeal and the motion for leave to appeal. Otherwise, the bankruptcy clerk must promptly send the notice and motion to the district clerk.

(2)

Docketing the Appeal. Upon receiving the notice and motion, the district or BAP clerk must docket the appeal as prescribed by Rule 8003(d)(2).

(3)

Oral Argument Not Required. Unless the district court or BAP orders otherwise, a motion, a cross-motion, and any response will be submitted without oral argument.

(d)

Failure to File a Motion for Leave to Appeal.

If an appellant files a timely notice of appeal under this rule but fails to include a motion for leave to appeal, the district court or BAP may:

(1)

treat the notice of appeal as a motion for leave to appeal and grant or deny it; or

(2)

order the appellant to file a motion for leave to appeal within 14 days after the order has been entered—unless the order provides otherwise.

(e)

Direct Appeal to a Court of Appeals.

If leave to appeal an interlocutory order or decree is required under 28 U.S.C. § 158(a)(3), an authorization by a court of appeals for a direct appeal under 28 U.S.C. § 158(d)(2) satisfies the requirement.

(Added Apr. 25, 2014, eff. Dec. 1, 2014; amended Apr. 2, 2024, eff. Dec. 1, 2024.)