          United States Court of Appeals
                        For the First Circuit


No. 08-8046

                IN RE     LINDA LYNN WEAVER, DEBTOR
                         ____________________

                          LINDA LYNN WEAVER,

                        Plaintiff, Respondent,

                                  v.

                HARMON LAW OFFICES, P.C., ET AL.,

                    Defendants, Petitioners.

                         ____________________

              PETITION FOR LEAVE TO APPEAL FROM THE
       BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. William C. Hillman, U.S. Bankruptcy Judge]


                                Before

                     Lipez, Selya and Howard,
                         Circuit Judges.


     David M. Rosen, Harmon Law Offices, P.C., and Walter Oney on
response to order to show cause and petition for leave to appeal.



                          September 17, 2008
            Per    Curiam.            This   is    an   attempted    appeal   from   a

bankruptcy court decision under 28 U.S.C. § 158(d)(2), added by

section   1233(a)(2)(B)          of    the   Bankruptcy     Abuse    Prevention   and

Consumer Protection Act of 2005 ("BAPCPA"), Pub. L. No. 109-8, 119

Stat. 23, 202-03. That statute permits direct appeals to the court

of appeals, with that court's permission, from bankruptcy court

decisions       under    certain        circumstances,      including    where    the

bankruptcy court certifies that the appeal satisfies the statutory

criteria for permitting such a direct appeal.                         See 28 U.S.C.

§ 158(d)(2)(A).         This is the first such attempted appeal to this

court.

            After the bankruptcy court transmitted its certification

of the appeal to this court, we issued an order to show cause why

the appeal should not be dismissed because (1) no timely notice of

appeal    was     filed,    as        required     by   Interim     Bankruptcy    Rule

8001(f)(1), adopted by the Bankruptcy Court for the District of

Massachusetts by Standing Order dated October 11, 2005, and (2) no

authorization of the direct appeal was sought or obtained from this

court, as required by 28 U.S.C. § 158(d)(2)(A).                   In their response

to that order, the defendants conceded that no notice of appeal had

been filed in the bankruptcy court1 and that no petition for


     1
      The defendants ask that the bankruptcy court's certification
be deemed the functional equivalent of a notice of appeal.
However, because certification of a direct appeal under section
158(d)(2) does not become effective until a timely appeal has been
taken to the bankruptcy appellate panel under sections 158(b) and

                                             -2-
authorization to appeal had been filed in this court but asked that

the direct appeal be authorized despite those procedural missteps.

               The answer to the question posed in the show-cause order

depends      in    the     first   instance           on    whether        the    procedural

requirements        referenced       in        that    order       are     deemed       to    be

jurisdictional or, rather, mere claims-processing rules.                                     See

Bowles v. Russell, 127 S. Ct. 2360, 2364-66 (2007).                          Under Bowles,

that determination depends, in turn, on whether the requirements

are     based      on    statutes,        in     which      case     they        are     deemed

jurisdictional, or merely on court-promulgated rules, in which case

they are not.        Id.     That question has not yet been decided by this

or any other court of appeals, and the answer is not free from

doubt.

               Without     resolving       that       jurisdictional question, we

exercise our discretion under section 158(d)(2)(A) to deny leave to

appeal. The existence of this serious jurisdictional question, and

the substantial possibility that jurisdiction would ultimately be

found lacking, means that allowing the appeal to proceed may not

serve    the      purposes    of   section       158(d)(2),        i.e.,     a    rapid      and

definitive resolution of the underlying legal question by this

court.    See Weber v. United States Trustee, 484 F.3d 154, 158, 159

(2d   Cir.      2007)    (citing   legislative             history    to    that       effect).



(c), BAPCPA, § 1233(b)(4)(A); Interim Bankr. R. 8001(f), the
certification itself cannot serve as a notice of appeal.

                                               -3-
Rather, if, as the bankruptcy court found in certifying this

appeal, there are hundreds of cases pending in the Bankruptcy Court

for the District of Massachusetts raising the same issue certified

here, it would be preferable to resolve that issue in a case not

raising the potentially fatal procedural problems presented here.

            To     avoid   such    problems      in    future     cases,    litigants,

bankruptcy       courts,   and    bankruptcy         appellate    panels    should   be

careful to follow the procedures set forth in section 158 itself

and in the applicable rules.                  Those rules appear in uncodified

section 1233(b) of the BAPCPA, Interim Bankruptcy Rule 8001(f)

(adopted    by    standing   order       by    all    bankruptcy    courts    in   this

circuit),    and    Proposed      Rule    8001(f)      of   the   Federal    Rules   of

Bankruptcy Procedure, which will become effective on December                        1,

2008, barring any contrary action by Congress in the meantime.

            The petition is denied, and the appeal is terminated.




                                          -4-
