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Court Insider: What is a Bankruptcy Appellate Panel?

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Court Insider

Court Insider is a periodic series that offers a close-up look at critical workings of U.S. courts.

A Bankruptcy Appellate Panel, or BAP, is authorized by 28 U.S.C. § 158 (b) to hear, with consent of all the parties, appeals from bankruptcy courts that otherwise would be heard by district courts, but only in those districts in which the district judges authorize appeals to BAPs.

BAPs were originally created by the Bankruptcy Reform Act of 1978, and the first BAP was established in the Ninth Circuit in 1979.  Since 1994, the judicial council of each circuit is required to establish a BAP unless the judicial council determines that 1) the circuit does not possess sufficient judicial resources to support a BAP, or 2) the circuit’s establishment of a BAP would result in undue delay and increased cost to the parties.

Five circuits have established BAPs.  The district judges of all districts in the First, Eighth, Ninth, and Tenth Circuits authorize BAP appeals in their respective districts.  In the Sixth Circuit, not all districts authorize appeals to BAPs.  Although the statute permits multi-circuit BAPs, none have yet been established.
BAPs sit as three-judge panels comprised of bankruptcy judges appointed from the circuit’s districts, with the restriction that no judge may participate in an appeal arising from that judge’s own district.  Typically, between 5 and 11 judges regularly serve on a circuit’s BAP, for multi-year terms fixed by the respective circuit judicial council.  Other judges from the circuit, or even from other circuits, may sit by designation. 

The five BAPs received 1,148 appeals in 2011 and terminated 1,021 appeals.  The median time in 2011 for final disposition of BAP appeals that went through the full process of briefing and formal determination was 8.6 months, ranging from 6.0 months in the Eighth Circuit to 9.6 months in the Sixth Circuit. (Comparable data is not published regarding bankruptcy appeals in district courts.)  The median for all appeals is even shorter because many are earlier settled or resolved for procedural reasons.

Although national statistics do not conclusively show that BAPs decide bankruptcy appeals faster than district courts, a report by the National Conference of Bankruptcy Judges (pdf) notes that comparison of the dockets of the First Circuit and Tenth Circuit BAPs with the district court dockets reveals that those BAPs, on average, produced faster dispositions.

Official Judiciary statistics reveal two impacts of BAPs on the workload of the Article III judiciary. First, BAPs reduce the workload of the district courts in districts in which BAP appeals are permitted because all parties to appeals historically agree to BAP resolution in 50 to 60 percent of bankruptcy appeals.  For example, in 2011, of 1,174 appeals in the Ninth Circuit, 750 (64 percent) went to the BAP, and 424 to the district courts.

BAPs also reduce the workload of the courts of appeals because BAP dispositions are further appealed at about half the rate of dispositions by district courts.  In 2011, district courts terminated 2,149 bankruptcy appeals nationally, and there were 521 bankruptcy appeals to the circuits from district courts (i.e., 24 percent).  That year, BAPs terminated 1,021 appeals, and there were 122 appeals to the circuits from BAPs (i.e., 12 percent).

Sources: Case Management Procedures in the Federal Courts of Appeals (pdf), Laural Hooper, Dean Miletich, and Angelia Levy, Federal Judicial Center. 2011. BAP statistics are published quarterly by the Administrative Office of U.S. Courts.  The statistics in this paper are derived from: Table B-10 (filings, terminations, pending); Table B-14 (median time intervals in cases terminated after hearing or submission); Table B-23 (terminations and filings – district courts, BAPs, and courts of appeals).

This story was updated on December 5, 2012.