In a similar vein, the Ninth Circuit in Reilly v. Hussey, et al. 93 C.D.O.S. 2054 (March 24, 1993) dismissed an appeal for lack of jurisdiction. The notice of appeal was filed pending appellant=s motion for rehearing in district court, which was sitting in an appellate capacity in a bankruptcy matter.

The Court held that the notice of appeal Awas a nullity: >[I]t is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act.= Griggs. V. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).@ Reilly, supra, at 2054.

The Court found that Bankruptcy Rule 8015 was silent on the effect of an appeal filed before a motion for rehearing was decided and pointed out that Federal Rule of Appellate Procedure 6(b)(2)(i) provides that the time for appeal to the Court of Appeals runs from the entry of an order denying rehearing. Finally, the three-judge panel also found that the Advisory Committee on Appellate Rules deliberately omitted any such reference regarding the effect of an appeal filed before the entry of an order denying rehearing because it wished to Aleave undisturbed the current state of law in that area.@ Id., citing Fed. R. Appl. P. 6, Advisory Committee Notes, 1989 Amendment, subd. (b)(2). The law of the circuit at the time of the amendment held that a notice of appeal in a bankruptcy case is null if filed while a motion for rehearing is pending in district court. In re Stringer, 847 F.2d 549, 550 (9^th Cir. 1988). The Court in Reilly reaffirmed Stringer. Reilly, supra, 93 C.D.O.S. at 2054.

The result in Reilly seems logical, considering the law of the circuit and considering the fact that the appellants in the case had sought numerous reviews of adverse decisions in bankruptcy court, district court, and the Bankruptcy Appellate Panel.

However, one aspect of the decision could have harsh consequences for the unwary appellant: the Ninth Circuit could have promptly dismissed the appeal without prejudice, allowing appellants (who were in pro per) an opportunity to appeal following the district court=s denial of the rehearing motion. Instead, the court left appellants without further opportunity for review by waiting almost two years and then publishing its dismissal, well after the time had run for appeal from denial of the motion. Although that may not have been such a terrible result in this case, the consequences in other contexts in which the notice of appeal was a nullity are ominous: dismissal with no further opportunity to appeal because time to do so has long since run.

The court=s holdings in Shpiller and Reilly provide ample notice for counsel to ensure that he or she is appealing from a final judgment or appealable order. If not, and this trend continues, the unwary practitioner at best will waste a considerable amount of time and money (his or her own and the client=s). The court in Shpiller dismissed the appeal after briefing and presumably, after the expenditure of much time and money. Even if the dismissal is without prejudice, the attorney will likely be unable to charge the client much, if anything, the second time around. At worst, in a Reilly scenario, the requisite judgment or appealable order exists, but the notice is not timely filed, leading presumably to a possible malpractice claim. Either way, the appellate courts= increased focus on their jurisdiction makes appealability more important than ever.

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