McKinney, Lonnie E. v. Salta Group Inc ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-2538
IN RE:
LONNIE E. MCKINNEY,
Debtor-Appellee.
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Certification from the United States Bankruptcy Court
for the Central Division of Illinois.
No. 05 B 84385—Thomas L. Perkins,
Chief Bankruptcy Judge.
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SUBMITTED JUNE 6, 2006—DECIDED JULY 25, 2006
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Before POSNER, EASTERBROOK, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge. This appeal presents an issue of
first impression but little difficulty: whether section 1233 of
the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005, which permits a direct appeal from the bank-
ruptcy court to the court of appeals if both courts agree (see
section 1233(b)(3)(B)) that it should be appealed, 28 U.S.C.
§ 158(d)(2)(A), is applicable to bankruptcy proceedings filed
before the effective date of the provision, which was
October 17, 2005. BAPCPA § 1501(a) (uncodified); In re
Nichols, 440 F.3d 850, 857 n. 6 (6th Cir. 2006). The Act
provides, with immaterial exceptions, that it “shall not
apply with respect to cases commenced under title 11,
United States Code, before the effective date of this Act.”
§ 1501(b)(1) (uncodified).
2 No. 06-2538
The bankruptcy court has certified an appeal directly to us
from a ruling in a proceeding filed before the effective date
of the new law. Noting that the certification provision is
procedural (in a broad sense—technically, it is jurisdictional,
because it enlarges our appellate jurisdiction) rather than
substantive, and that statutory changes in procedures (in
that same broad sense), as distinct from statutory changes
in substantive rights or duties, are normally applied to
pending cases, Martin v. Hadix, 527 U.S. 343, 359 (1999);
Landgraf v. USI Film Products, 511 U.S. 244, 275 (1994), the
appellee (who would prefer us to affirm the bankruptcy
court’s order rather than to dismiss the appeal) asks us to
interpret the “shall not apply with respect to cases
commenced . . . before the effective date” provision as
applicable only to substantive provisions of the new law.
But the presumption that a procedural change is to be
applied retroactively falls away when the statute making
the change specifies that the statute shall not apply to
pending cases, id. at 280; Lindh v. Murphy, 521 U.S. 320, 332
(1997); Turkhan v. Perry, 188 F.3d 814, 825 (7th Cir. 1999), as
the new bankruptcy law does. (See Christo v. Padgett, 223
F.3d 1324, 1332 (11th Cir. 2000), which denied retroactive
effect to another procedural change in the bankruptcy
code on the basis of language similar to that of section
1501(b)(1).) The fact that exceptions other than for certifi-
cation are expressly stated strengthens the inference that
procedural changes were not intended to be excepted. Nor
does the appellee suggest that judicial interpolation of
an exception is necessary to avoid some grotesque injustice
or absurdity.
The appeal is outside our jurisdiction and is therefore
DISMISSED.
No. 06-2538 3
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-06