Local Rules Bankruptcy Appellate Panel for the Sixth…

       Local Rules


Bankruptcy Appellate Panel
   for the Sixth Circuit


      January, 1997
                                            RULES
                       BANKRUPTCY APPELLATE PANEL
                               OF THE SIXTH CIRCUIT


             RULE 8000 - 1.      DEFINITIONS - APPEAL
             (a)   Panel Clerk. The words "panel clerk" as used in these rules mean the
Clerk of the Bankruptcy Appellate Panel of the Sixth Circuit.
             (b)   Judge. The word "judge" as used in these rules, unless otherwise
designated, means a judge of the Bankruptcy Appellate Panel of the Sixth Circuit.
             (c)   Panel. The word "panel" as used in these rules means a panel of three
judges of the Bankruptcy Appellate Panel of the Sixth Circuit.
             (d)   BAP. The acronym "BAP" or the words "Bankruptcy Appellate Panel of
the Sixth Circuit" as used in these rules mean the Bankruptcy Appellate Panel Service
established by the Judicial Council of the Sixth Circuit pursuant to 28 U.S.C. § 158(b)(1).


             RULE 8001 - 3.      ELECTION FOR DISTRICT COURT
DETERMINATION OF APPEAL
             (a)   Written Statement of Election Required. In districts that have
authorized appeals to the BAP, every appeal filed in the bankruptcy court shall be heard by the
Bankruptcy Appellate Panel of the Sixth Circuit unless--
                     (1) at the time of filing the appeal or cross-appeal, the appellant or cross-
       appellant files with the clerk of the bankruptcy court a separate written statement of
       election to have the appeal heard by the district court; or,




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                      (2) within thirty days after service of notice of the appeal, any other party
               to the appeal files with the panel clerk a separate written statement of election to
               have the appeal heard by the district court. The filing by any other party to the
               appeal of any paper (other than a notice of appearance) with the BAP waives
               the time remaining in the thirty-day period for that party to elect to have the
               appeal heard by the district court.
             (b)    Upon Motion for Leave to Appeal. In districts that have authorized
appeals to the BAP, every appeal upon motion for leave to appeal under Rule 8003 shall be
heard by the Bankruptcy Appellate Panel of the Sixth Circuit unless--
                   (1) at the time of filing the motion for leave to appeal, the moving party files
               with the clerk of the bankruptcy court a separate written statement of election to
               have the appeal heard by the district court; or,
                   (2) within thirty days after service of the motion for leave to appeal, any
               party adverse to the motion for leave to appeal files with the clerk of the
               bankruptcy court a separate written statement of election to have the appeal
               heard by the district court. The filing by any party adverse to the motion for
               leave to appeal of any paper (other than a notice of appearance) with the BAP
               or the filing of a response to the motion for leave to appeal with the bankruptcy
               court, waives the time remaining in the thirty-day period for that party to elect
               to have the appeal heard by the district court.


             RULE 8004 - 1.      SERVICE OF NOTICE OF APPEAL
             The clerk of the bankruptcy court shall forthwith transmit to the panel clerk a
copy of the notice of appeal together with a copy of the order or judgment from which the
appeal is taken.


             RULE 8008 - 1.      FILING PAPERS - APPEAL



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             Unless prior authorization is obtained from the panel clerk, filing of papers by
facsimile is not permitted.


             RULE 8009 - 3.      FORMS OF APPENDIX TO BRIEFS - APPEAL
             (a)    Organization and Presentation. The appendix shall be bound separately
from the brief. The appendix shall be reproduced on white paper by any copying process
producing a clearly legible image. Papers in the appendix shall be organized as follows: a table
of contents shall be first; relevant entries on the bankruptcy court docket shall be second; other
items shall follow in the order listed on the docket (unless so voluminous as to be separately
bound). If the appendix includes both items from the bankruptcy court case docket and items
from an adversary proceeding docket, entries on the case docket shall precede entries on the
adversary proceeding docket. If this organization is impossible or inappropriate for a particular
appeal, any different organization shall be explained in a note to the table of contents.
             (b)    Numbers of Copies. Five copies of each appendix shall be filed. One copy
of the appendix shall be served on each other party.
             (c)    Portions of Transcript. Pursuant to Rule 8009(b)(9), the appendix shall
include the portions of the transcript necessary for adequate review of the issues before the
panel. The panel is required to consider only those portions of the transcript included in the
appendix.
             (d)    Appendix as Public Record. Appendices filed with the BAP are public
records. To have an appendix sealed, a timely motion must be filed.


             RULE 8010 - 1.      FORMS OF BRIEFS - APPEAL
             (a)    Number of Copies. Five copies of each brief shall be filed. One copy of
the brief shall be served on each other party.
             (b)    References to the Record. References in the briefs to the record should
include the number of the document on the bankruptcy court docket, if any, and the page of the
document.

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             (c)    Citation of "Unpublished" Decisions. Citation in briefs and oral
arguments of decisions designated "not for publication" by the Sixth Circuit, or given any
similar limited precedential effect by the court rendering the decision, is disfavored, except for
the purpose of establishing res judicata, estoppel, or the law of the case. Such decisions may be
cited only if a copy thereof is served on all other parties and on the panel. Service may be
accomplished by including a copy of the decision in an addendum to the brief.
             (d)    Format and Spacing of Type. Briefs shall be submitted on white 8½ by
11-inch paper in typewritten form, using electronic word processing, or similar process, and
reproduced by photocopying, or similar process. Briefs shall be double-spaced in a font not
less than 12 points in size with margins of not less than one inch.
             (e)   Color of Covers. Covers shall be the following colors:
               Appellant's First Brief                         Tan
               Appellee's First Brief                          Green
               Appellant's Second Brief                        Yellow
               Appellee's Second Brief                         White
               Intervenor or Amicus Brief                      White
               Appendix                                        White
             (f)   Extensions of Time. Extensions of time for the filing of briefs must be
sought by motion and for good cause shown.
             (g)    Briefs as Public Record. Briefs filed with the BAP are public records. To
have a brief sealed, a timely motion must be filed.


             RULE 8011 - 2.       DETERMINATION OF PROCEDURAL MOTION -
APPEAL
             (a)    By Panel Clerk. The panel clerk may act on the following motions without
submission to a panel or judge:




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                      (1) Motions that are procedural or relate to the preparation or filing of
                the appendix or briefs;
                      (2) Motions for voluntary dismissal of appeals;
                      (3) Motions to dismiss for want of prosecution;
                      (4) Motions for extensions of time;
                      (5) Motions to withdraw or for substitution of counsel; and
                      (6) Such other motions as the BAP may designate the panel clerk to act
                upon that are subject to disposition by a single judge under Rule 8011(e).
             (b)    Order by Panel Clerk. An order by the panel clerk disposing of a motion
shall show that it was entered by the panel clerk pursuant to this rule. Any party adversely
affected by an order entered by the panel clerk shall be entitled to reconsideration by a judge or
panel if, within ten days of service of notice of entry of the order, the party files a motion for
reconsideration.


             RULE 8011 - 4.       EMERGENCY MOTION - APPEAL
             An emergency motion pursuant to Rule 8011(d) shall be filed with the panel clerk
in Cincinnati, Ohio. The movant shall provide all documents relevant to the motion to the BAP
and to all opposing parties.


             RULE 8012 - 1.       ORAL ARGUMENT - APPEAL
             (a)    Advancement of Hearing. A panel may, on its own motion or for good
cause shown on motion of a party, advance any case to be heard, though the time permitted
under the rules for filing briefs may not have expired as of the hearing date.
             (b)    Postponement of Hearing. After a case has been set for hearing,
postponement must be sought by motion for good cause shown.
             (c)    Oral Argument.




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                       (1)   Oral argument will not be heard on behalf of any party for whom a
        brief has not been filed unless otherwise directed by the panel.
                       (2)   An amicus curiae may, with the consent of a party, argue orally on
        the side of such party, provided that the time permitted for oral argument on behalf of
        that party will not thereby be exceeded. In the absence of such consent, argument for
        an amicus curiae may be made only upon motion to the panel in advance of the hearing
        date.
                (d)   Waiver of Oral Argument. Oral argument may be waived upon written
stipulation of the parties, unless the panel orders otherwise.


                RULE 8013 - 1.    DISPOSITION OF APPEAL
                (a)   In Open Court. In those cases in which the decision is unanimous and
each judge of the panel believes that no jurisprudential purpose would be served by a written
opinion, disposition of the case may be made in open court following oral argument. A written
judgment shall be signed and entered by the clerk in accordance with the decision of the panel
from the bench.
                (b)   Decisions as Precedent. A panel may limit the precedential effect of a
decision to the case and parties before it by so stating in its decision. Absent such a statement,
decisions of a panel shall not be limited as precedent for purposes of 6th Cir. BAP LBR 8010 -
1(c).


                RULE 8016 - 4.    CLERK OF THE BANKRUPTCY APPELLATE PANEL
                (a)   Designation of Clerk. The Clerk of the United States Court of Appeals for
the Sixth Circuit shall serve as Clerk of the Bankruptcy Appellate Panel of the Sixth Circuit.
                (b)   Communications to the BAP. All communications to the BAP shall be
addressed to the Clerk of the Bankruptcy Appellate Panel of the Sixth Circuit, 532 Potter
Stewart U.S. Courthouse, 100 East Fifth Street, Cincinnati, Ohio 45202-3988.



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             RULE 8018 - 1. LOCAL RULES OF CIRCUIT JUDICIAL COUNCIL OR
DISTRICT COURT
             The Rules of the Bankruptcy Appellate Panel of the Sixth Circuit shall be cited as:
  "6th Cir. BAP LBR _______ - ______." For example, subsection (a) of Rule 8010-1 of
these rules shall be cited as "6th Cir. BAP LBR 8010 - 1(a)."


             RULE 8070 - 1.       DISMISSAL OF APPEAL BY COURT FOR NON-
PROSECUTION
             (a)    After Notice by Panel Clerk. If an appellant or cross-appellant fails to
comply with the Federal Rules of Bankruptcy Procedure or with these rules, the panel clerk
shall notify the appellant or cross-appellant that the appeal or cross-appeal will be dismissed for
non-prosecution unless the default is remedied within fifteen days. If the appellant or cross-
appellant fails to remedy the default within the fifteen day period, the panel clerk shall enter an
order dismissing the appeal or cross appeal for non-prosecution.
             (b)    By a Panel. A panel on its own initiative or on the motion of a party may
dismiss an appeal or take other appropriate action, including an award of damages and
attorney's fees, for the failure of any party to comply with the Federal Rules of Bankruptcy
Procedure or with these rules. Dismissal by a panel is independent of the notice of default
provided in subsection (a) of this rule.


             RULE 8080 - 2.       PRE-ARGUMENT CONFERENCE AND MEDIATION -
APPEAL




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             (a)    Pre-Argument Conference. All bankruptcy appeals shall be reviewed by
staff attorneys to determine if a pre-argument conference would be of assistance to the BAP or
the parties. Such a conference may be conducted by a judge or a staff attorney known as the
conference attorney designated by the chief judge. Any party may request a pre-argument
conference by motion.


             (b)    Attendance. Any party may be required to attend a pre-argument
conference--in person or by telephone. The possibility of settlement, simplification of issues,
the use of mediation and any other matters which the judge or conference attorney determines
may aid in disposition of the appeal may be considered at the pre-argument conference.
             (c)    Participating Judge Disqualified. Any judge who participates in a
pre-argument conference or becomes involved in mediation or settlement discussions pursuant
to this rule will not sit on a panel that considers any aspect of the case.
             (d)    Confidentiality. Statements made and information exchanged during a
pre-argument conference or mediation are confidential, except to the extent disclosed by the
pre-argument conference order, and shall not be disclosed by the conference judge or
conference attorney nor by parties in briefs or argument.
             (e)    Pre-Argument Conference Order. To effectuate the purposes and results
of this rule, a judge or the panel clerk at the request of the conference attorney shall enter a
pre-argument conference order.


             RULE 8090- 1.       ATTORNEYS - ADMISSION TO PRACTICE
             (a)    Admission. Any attorney admitted to practice before a United States
district court within the Sixth Circuit or before the United States Court of Appeals for the Sixth
Circuit and who is in good standing before such court shall be deemed admitted to practice
before the BAP. An attorney not so admitted may apply to the panel for permission to appear
in a particular appeal.




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             (b)   Notice of Appearance. Any attorney who wishes to file documents or
argue on behalf of any party shall file a notice of appearance on a form available from the panel
clerk.




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