Petition for Writ of Certiorari — Raynor v. Myers

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rame Court, U.S.

om FILED

No._____ 49-645 NOV 9- 2010

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

MAUREEN K. RAYNOR and

JOHN PATRICK RAYNOR,

Petitioners,

RICHARD D. MYERS,

Chapter 7 Trustee,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN P. RAYNOR

RAYNOR, RENSCH & PFEIFFER

10110 Nicholas Street, Suite 102

Omaha, Nebraska 68114

Telephone: (402) 498-4400

JRaynor@rrplawyers.com

QUESTION PRESENTED

Viewed narrowly, whether the Eighth Circuit

Court of Appeals erred and acted contrary to prece-

dent of this Court, Graham County Soil & Water

Conservation Dist. v. U.S. ex rel., Wilson, 545 US.

409, 125 S. Ct. 2444, 2550-51 (2005), by relying upen

Federal Rule of Civil Procedure 6(a) to commence a

limitation period the day after there was a complete

and present cause of action.

Viewed globally, whether the Eighth Circuit

Court of Appeals erred, through this decision, by

(1) joining in on widening the schism between this

Court and the other Circuit Courts on the issue of

law for determining limitation periods, (2) defeating

the Constitutional right of equal protection under the

law, and (3) failing to recognize the judicial hierarchy

of law by disregarding this Court’s precedent. This

Yourt has “repeatedly recognized that Congress

legislates against the standard rule”; nevertheless,

the Circuit Courts have repeatedly applied the Mod-

ern Rule. The Modern Rule deploys Federal Rule of

Civil Procedure 6(a) to find that a limitation period

commences the day after there is a complete and

present cause of action, and extends a limitation

period to the next business day when it would have

otherwise expired on a weekend or holiday.

PARTIES TO THE PROCEEDING

Petitioners are Maureen K. Raynor (“M.

Raynor”), non-debtor wife, and John P. Raynor (“d.

Raynor”), debtor and husband. Maureen Raynor was

a defendant in an adversary proceeding instigated by

Richard D. Myers, Trustee (“Trustee”) in the Chapter

7 bankruptcy proceeding of John P. Raynor (“Debt-

or”). John P. Raynor intervened in the adversary

proceeding.

DISCLOSURE STATEMENT

Counsel is a petitioner/intervener/debtor and is

the husband of the Petitioner, the defendant in the

adversary proceeding commenced by the Trustee.

11]

TABLE OF CONTENTS

Page

QUESTION PREG Fe vccseccsvcscescsscncncsvsanseaveses

PARTIES TO THE PROCEEDING .............. ree ii

DISCLOSURE STATEMENT ..... Trane one aoe eeaneeeke il

TABLE OF AUTHORITIBS ............................00. ~ 1

COPPER IIS BREA iia cisescccstiscdcas concurs Scauees pecaeaeaan 1

Fal es Bask xavscnerarce aie oe 1

STATUTES AND PROCEDURAL RULES

fgg of.” | SNe MORIERE OIE acer eek BS Cec) at aire 2

STATEMENT OF THE CASE..........................008. 5

A. Factual Background .............. PPE te SAD 8

B. Proceecivias Bel ..ec.cccvscsssessesvcsscsessssecsses 9

REASONS FOR GRANTING THE PETITION .... 11

ES Ge ADR IRE? POPES 5 onic scecitnsxcetessnesvidersrsecaied 12

Fe PE PS IE Gr cade nndccconstacrsscnvodneneeseress 14

MODERN RULE — RELIANCE UPON RULE

G(a) IS ERROR .............. suunguscuvicdraevenseapia teins 17

THE PANEL'S REASONING.................0..000.0...0... 20

THE PANEL AND STARE DECISIS .................. 22

LIMITATION STATUTES REPRESENT PUB-

Rae WE BE eos vaca ebenscras saecaaeueaniveckisenvusae cies 26

CP ee aceon ines on esdceavunovenesseapiatea aden 27

TABLE OF CONTENTS — Continued

Page

Appendix A

The Eighth Circuit’s August 23, 2010 decision

applying the Modern Rule — Jn re Raynor,

2010 U.S. App. LEXIS 17596 (8th Cir. Aug.

Di | eine ane ann ana App. 1

Appendix B

Eighth Circuit Bankruptcy Appellant Panet’s

June 4, 2009 decision applying the Modern

Rule — Jn re Raynor, 406 B.R. 375 (B.A.P. 8th

NN creer ca viekactscaecser cen tex eiocco ne aan tice App. 16

Appendix C

The Nebraska Federal District Court’s No-

vember 21, 2007 decision applying the Mod-

ern Rule — Jn re Raynor, 2007 U.S. Dist.

LEXIS 86324 (D. Neb. Nov. 21, 2007)........... App. 31

Appendix D

Nebraska Bankruptcy Court’s January 26,

2007 decision applying the Modern Rule — Jn

re Raynor, 2007 Bankr. LEXIS 172 (Bankr.

D. Neb. Jan. 26, 2007)............. Suse cemasankaio App. 40

Appendix E

The Eighth Circuit January 4, 2008 Mandate

refusing to hear the Mandamus Petition re-

questing the application of the Standard

Rule to confine lower court to its lawful ju-

PI ccasracaucedavencrsteaisisery ss sguvessadonmmasnie App. ¢

TABLE OF CONTENTS — Continued

Page

Appendix F

This Court’s rejection, after conference, of a

Writ of Certiorari contesting the Mandamus

Mandate — Raynor v. United States Dist.

Court, God UB. 1065 CAG) ono cnc cnccccccccccccsees App. 49

Appendix G

October 20, 2010 Denial of the Petition for

eg oe | | a a eee App. 50

TABLE OF AUTHORITIES

Page

CASES

Anastasoff v. United States, 223 F.3d 898 (8th

Cir. 2000), rehearing en banc granted, 2000

U.S. App. LEXIS 33247 (8th Cir. 2000)............ 23, 24

Bartlik v. United States DOL, 62 F.3d 163 (6th

iad cu encekewauubaaraenonaansaces 16

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal., 522

U.S. 192, 118 S. Ct. 542, 139 L. Ed. 2d 553

ean ia is aeeteedekvstasiiidasbuguunkuntasieuies passim

Chase Securities Corporation v. Donaldson, 325

U.S. 304, 65 S.Ct. 1187, 89 L.Ed. 1628

Cee eg ae ahs load encwhiont 26

Clark v. lowa City, 87 U.S. 583, 20 Wall. 583,

ie I © OD ain tas sce ncsscanossavadeaxcussnasersans 13, 14

Frey v. Woodard, 748 F.2d 173 (3d Cir. 1984)............ 16

Graham County Soil & Water Conservation Dist.

v. U.S. ex rel., Wilson 545 U.S. 409, 125 S. Ct.

2444, 162 L. Ed. 2d 390 (2005)......... 6, 12, 13, 17, 24

Harbor Natl Bank v. Sid Kumins, Inc., 696

a Esc cena daeuanedtaeevasdenesckseucses 16

Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70

Bie SE Oe © BIE oc accasacccexssssarcsenscodcvanendsosen’ 11, 24

fd. Brick Co. v. 11i., 431 U.S. 720 (1877 )......0.00000ss00000. 24

In re Olsen, 2001 Bankr. LEXIS 2142 (Bankr.

eS SY es cans cavencwenadabensdcenens 22

Vl1l

TABLE OF AUTHORITIES — Continued

Page

Lamie v. United States Trustee, 540 U.S. 526,

124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004)............ 21

Lee v. National Home Ctrs., Inc. (In re

Bodenstein), 253 B.R. 46 (B.A.P. 8th Cir. Ark.

I oor aero aunescesh cis vouueceunanes casero ee cesenrdinsssaraenaceds -

Maahs v. United States, 840 F.2d 863 (11th Cir.

I casos cen cnes ev uneaccdanentavk sor ciean cede anc te aes 16

Mader v. United States, 2010 U.S. App. LEXIS

18142 (8th Cir. Neb. Aug. 31, 2010)............... passim

Mattson v. U.S. West Communications, Inc.,

967 F.2d 259 (8th Cir. 1992) ................... 8, 18, 22, 23

McCuskey v. Central Trailer Servs., 37 F.3d

Re CGH SAT, BED vvccccccccsccscsscnsscacsesvsensnens 21, 22, 23

Reiter v. Cooper, 507 U.S. 258, 113 S. Ct. 1218,

122 L. Bd. 2d GO4 (199B)........cerccsevseees 6, 7, 12, 24, 25

Sain v. City of Bend, 309 F.3d 1134 (9th Cir.

RRR Dp ASF CIRO REL OOS RHRBE YS Pl RADE RE oe Te ET ee EAE 16

Shady Grove Orthopedic Assocs., PA. v. All-

state Ins. Co., 130 S. Ct. 1431, 176 L. Ed. 2d

AE COL isc evascats ee aati onan ere RAE A Aine PT 19

Simon v. Commissioner, 176 F.2d 230 (2d Cir.

EERIE A et AR UM eet Ree deine Ae, ge A ee 15

Thurston Motor Lines, Inc. v. Jordan K. Rand,

Litd., 460 U.S. 533, 75 L. Ed. 2d 260, 103

Pes BE FN css v crea sn nds Gad acauakanadua ee Giaieesexicnnces 26

Tribue v. United States, 826 F.2d 633 (7th Cir.

Vill

TABLE OF AUTHORITIES — Continued

Page

TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.

441, 151 L. Ed. 2d 339 (2001) ..eccecccececeesee 6, 7, 24, 25

Union Natl Bank of Wichita Kan. v. Lamb,

337 U.S. 38, 69 S.Ct. 911, 93 L. Ed. 1190

| amen 8, 15, 16, 17, 18

Union Pacific R. Co. v. Beckham, 138 F.3d 325

Ss a ac ana vaavevdanencens 26

United Mine Workers, International Union uv.

Dole, 870 F.2d 662 (D.C. Cir. 1989) ........................ 16

United States v. Peters, 220 F.2d 544 (10th Cir.

ce A ee eps yagi Giatekeusesucees 15

Walker v. Armco Steel Corp., 446 U.S. 740, 100

S. Ct. 1978, 64 L. Ed. 2d 659 (1980)..................0c008, 18

Western P. R. Corp. v. Western P. R. Co., 345

U.S. 247, 73 S. Ct. 656, 97 L. Ed. 986 (1953)......... 23

Wilkes v. United States, 192 F.2d 128 (5th Cir.

* THONBE Se CSCIC SEIS HUA AN yo se ee 15

Wirtz v. Peninsula Shipbuilders Assoc., 382

oc asecukvvassavvnetsdaveddceveees 16

Wood-Ivey Sys. Corp. v. United States, 4 F.3d

eo, cau caer diaccdvonscnsevediacenicsuinaine 16

STATUTES AND RULES

By re in iy a cach niisdcevenwdevionvis a, 20, 21, Z2

I a sen tueupbsisawenecnen 7,26

ee BIN iss cas dexeieceinnsasncnnvdusourdesiacsvxaevgeess 2,18

TABLE OF AUTHORITIES — Continued

Page

28 UES... © a io arecictsesessese0s0s05..0, 19

29 U.S.C. © Rear pekicsoneccsccsccscse. 7, 265

49 U.S.C. © Fe Peers triticevescrccccsscces. 1,20

Bed. Fe. Ci Fe eer ihicsisiyesccscncccccscess 18

Fred. Fi. Caw. Fe ere iisediccsnssccsccsees passim

Od. FR. Core By ae ear a idacssnccesessccscessceeees 18

Fed. RR. Emery Fi Bere cata tatsateceniscscecccccscees. 4,5, 19

Fed. FR. Baaeihs Fe ies erate cnsasccecccsccsccces. 18, 19

OTHER AUTHORITIES

1 Bankruptcy Practice Handbook § 6:30 (2d

OG. ) ...0<00s00snsses nee tnnnnnEEEEEERENGECKYGeenensecsesesosssees 26

OPINIONS BELOW

The opinions below are:

The Eighth Circuit Court of Appeals’ (the “Eighth

Circuit”) denial of the Petitioners’ Petition for Rehear-

ing En Banc on October 20, 2010. See Doc. G., App.

90.

The Eighth Circuit’s August 23, 2010 decision

applying the Modern Rule. See Doc. A, App. 1-15. The

Circuit Judges in Petitioners’ Panel were the Honor-

able Lavenski R. Smith, the Honorable William

Duane Benton, and the Honorable Bobby E. Shep-

herd.

The Eighth Circuit Bankruptcy Appellant Panel’s

June 4, 2009 decision applying the Modern Rule. See

Doc. B, App. 16-30.

The Nebraska Bankruptcy Court’s January 26,

2007 decision applying the Modern Rule. See Doc. D,

App. 40-47.

In an interlocutory appeal, the Nebraska Federal

District Court’s November 21, 2007 decision applying

the Modern Rule. See Doc. C, App. 31-39.

JURISDICTION

The Court of Appeals denied the Petition for

Rehearing on October 20, 2010. This Court has juris-

diction under 28 U.S.C. § 1254(1).

STATUTES AND PROCEDURAL

RULES INVOLVED

This applicable Federal limitation statute is:

11 U.S.C. $ 546(a)

(a) An action or proceeding under section

544, 545, 547, 548, or 553 of this title may

not be commenced after the earlier of -

(1) the later of -

(A) 2 years after the entry of the

order for relief; or

(B) 1 year after the appointment

or election of the first trustee under

section 702, 1104, 1163, 1202, or

1302 of this title if such appoint-

ment or such election occurs before

the expiration of the period specified

in subparagraph (A); or

(2) the time the case is closed or dis-

missed.

Because of the timing of the appointment of the

Trustee in this case, the applicable subpart of the

statute is 1] U.S.C. $ 546(a)(1)(A) — “2 years after the

”

entry of the order for relief... .

Other statutes and rules are:

28 U.S.C. $ 2072(b)

(a)

(b) Such rules shall not abridge, en-

large or modify any substantive right.

All laws in conflict with such rules shall

be of no further force or effect after such

rules have taken effect.

(c)

The applicable portion of 28 U.S.C. 9 2075 is

Such rules shall not abridge, enlarge, or

modify any substantive nght

Fed. R. Civ. P. 6(a)(1)

(a) Computing Time.

The following rules apply in computing

any time period specified in these rules,

in any local rule or court order, or in any

statute that does not specify a method of

computing time.

(1) Period Stated in Days or a Longer

Unit.

When the period is stated in days or

a longer unit of time:

(A) exclude the day of the event

that triggers the period;

ol a)

(B) count every day, including

intermediate Saturdays, Sun

days, and legal holidays; and

period, but if the last day is a

Saturday, Sunday, or legal holi-

day, the period continues to run

until the end of the next day

that is not a Saturday, Sunday,

or legal holiday.

Fed. R. Bankr. P. 9006(a)(1)

(a) Computing Time. The following rules

apply in computing any time period specified

in these rules, in the Federal Rules of Civil

Procedure, in any local rule or court order, or

in any statute that does not specify a method

of computing time.

(1) Pertod stated in days or a longer

unit. When the period is stated in days

or a longer unit of time:

(A) exclude the day of the event

that triggers the period;

(B) count every day, including in-

termediate Saturdays, Sundays, and

legal holidays; and

but if the last day is a Saturday,

Sunday, or legal holiday, the period

continues to run until the end of the

next day that is not a Saturday,

Sunday, or legal holiday.

Petitioners’ reference to Fed. R. Civ. P. Rule 6(a)

(“Rule 6(a)”) throughout this document should be con-

strued to be a reference to Fed. R. Bankr. P. 9006(a)

(Bankr. Rule 9006(a)) because these rules, for this

purpose, mirror one another.

STATEMENT OF THE CASE

The Jurisdiction of the Eighth Circuit Panel (the

“Panel”) was based on 28 U.S.C. § 158(d)(1), an

appeal from a final order from Nebraska Bankruptcy

Court involving the application of a Federal limita-

tion statute.

This petition and the relief requested hereunder

involve one and only one legal issue: whether the

Standard Rule or the Modern Rule is applicable to

Federal limitation statutes to determine the limita-

tion period. This Court has held:

in keeping with the default rule that

Congress generally drafts statutes of lmita-

tions to begin when the cause of action ac-

crues. We have repeatedly recognized that

Congress legislates against the “standard

rule that the limitations period commences

when the plaintiff has a complete and pre-

sent cause of action.” Bay Area Laundry and

Dry Cleaning Pension Trust Fund v. Ferbar

Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct.

542, 139 L.Ed.2d 553 (1997) (internal quota-

tion marks omitted); see also Johnson ov.

United States, 544 U.S. 295, 305, 125 S.Ct.

1571, 1578, 161 L.Ed.2d 542 (2005) (calling

it “highly doubtful” that Congress intended

a time limit on pursuing a claim to expire

€

before the claim arose); Reiter v. Cooper, 507

U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d

604 (1993) (declining to countenance the “odd

result” that a federal cause of action and

statute of limitations arise at different times

“absen[t}] ... any such indication in the

statute”); TRW Inc. v. Andrews, 534 U.S. 19,

37, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001)

(SCALIA, J., concurring in judgment) (“Ab-

sent other indication, a statute of limitations

begins to run at the time the plaintiff has the

right to apply to the court for relief” (inter-

nal quotation marks omitted)). Therefore,

where, as the case is here, there are two

plausible constructions of a statute of limita-

tions, we should adopt the construction that

starts the time limit running when the cause

of action (here retaliation) accrues.

See Graham County Soil & Water Conservation Dist.

v. United States ex rel., Wilson, 545 U.S. 409, 418-419

(2005) (Footnote omitted).

The above passage cites Supreme Court cases

decided in 1993, 1997, 2001, and 2005, ALL of which

support the application of the Standard Rule (a/k/a

the Traditional Rule) to ALL Federal limitation

statutes with a solitary exception: that is, when the

explicit language of the statute itself indicates other-

wise.

This case involves a deviation from the discipline

of legal reasoning which has had the effect of voiding

and nullifying this Court’s precedent.

Notwithstanding extensive presentation of this

Court’s precedent cited above, the Panel, in error,

held:

these |Supreme Court] opinions [applying

the Standard Rule] do not address the calcu-

lation of bar dates for statutes of limitations

provisions stated in years, which is the

sole issue in this case. See Doc. A, App. 138

(Emphasis added).

The Panel’s reliance upon the ‘years’ distinction is

misplaced. Bay Area Laundry addressed 29 U.S.C.

§ 1451(f) (6 year limitation statute); T’RW, Inc. ad-

dressed 15 U.S.C. $ 1681p (2 years from date of

discovery or 5 years from date of act giving rise to

liability); and Reiter addressed 49 U.S.C. §$ 11706 (2

years). All of the foregoing cases addressed limitation

statutes expressed in years, and therefore, are appro-

priately relevant in dispelling the Panel’s argument.

Petitioners sought a Rehearing En Banc after

another Eighth Circuit Panel addressing a federal

limitation statute referred to an Eighth Circuit case

cited to and relied upon by the Petitioners before

their Panel but which case was ignored by the Panel

in the Petitioners’ case. In a highly irregular decision,

the other Eighth Circuit Panel held:

Whatever the continuing vitality of Mattson,

we decline to apply its reasoning to the stat-

ute of limitations at issue in this case.

See Mader v. United States, 2010 U.S. App. LEXIS

18142 (8th Cir. Neb. Aug. 31, 2010).

As noted in Judge Beam’s dissent in Mader, the

Eighth Circuit Panel’s 1992 decision in Mattson v.

U.S. West Communications, Inc., 967 F.2d 259 (8th

Cir. 1992), “has never been overruled by an en banc

court of this circuit and must be respected by the

panel majority in this case.” Mattson applied the

Standard Rule and declined to apply the Lamb Doc-

trine (e.g., Union Nat'l Bank of Wichita Kan. v. Lamb,

337 U.S. 38 (1949)) and Rule 6(a) to extend the limi-

tation period. In Petitioners’ Rehearing En Banc

request, Petitioners asserted that the scope of this

Court’s decisions and reasoning as well as the Panel’s

error (i.e., reliance on the years distinction) were

respectfully, forcefully and thoroughly presented.

Despite being presented with conflicting decisions

made by different panels within the Eighth Circuit

and the overriding precedent established by this

Court, the Eighth Circuit nevertheless outright

rejected the Petition for Rehearing. See Doc. F, App.

49.

A. Factual Background.

The Petitioner J. Raynor filed bankruptcy on

September 13, 2004 (NE Case No. BK04-83112 TJM).

On September 18, 2006, the Trustee initiated litiga-

tion, an avoidance action (Adv. No. A06-8105) against

the non-debtor spouse, Petitioner M. Raynor. After

numerous failed attempts to have the Standard Rule

applied and the case dismissed as time-barred, Peti-

tioner J. Raynor intervened. After further motions

narrowed the amounts at issue, the Petitioners

and the Trustee entered into a Stipulated Final

Judgment, and the Bankruptcy Court approved the

Stipulated Final Judgment. The Stipulated Final

Judgment reserved only one issue for appeal: the

limitation statute. (Adv. No. A06-8105, 03/09/2009,

Filing #226, Stipulated Judgment between Plaintiff/

Trustee, Maureen Raynor, and John P. Raynor award-

ing judgment against, Maureen Raynor, in the

amount of $76,391.12 plus interest). Petitioners

appealed.

B. Proceedings Below.

From the inception of the adversary proceeding,

Petitioners sought to have the Standard Rule applied

and the case dismissed. Consequently, there have

been two separate rounds of proceedings through the

system in this case: the first round was based upon a

Motion to Dismiss filed by Petitioner M. Raynor at

the onset of the adversary proceeding, and the second

round was initiated after a stipulated settlement

resolved ALL issues except for the limitation statute

issue.

The first round of the proceedings involved the

Motion to Dismiss as follows:

1. On November 6, 2006, the Motion to

Dismiss the action as time-barred was filed

by Petitioner M. Raynor.

2. On January 26, 2007, the Nebraska

Bankruptcy Court denied Petitioner M.

Raynor’s Motion to Dismiss relying upon the

Modern Rule. See Doc. D, App. 40-48.

3. An interlocutory appeal was taken

pursuant to 28 U.S.C. §$ 158(a)(3) and on

November 21, 2007, the Nebraska Federal

District Court entered a decision affirming

the Bankruptcy Court’s application of the

Modern Rule. See Doc. C, App. 31-39.

4. On December 17, 2007, Petitioner

M. Raynor filed the Writ of Mandamus

pursuant to 28 U.S.C. $1651 with the

Kighth Circuit Court of Appeals, and on

January 4, 2008, the Eighth Circuit denied

the request for Mandamus without opinion.

In re: Maureen Raynor, No. 07-3919, dated

January 4, 2008. See Doc. E, App. 48.

5. On May 27, 2008, this Court, after

conference, denied a Writ of Certiorari filed

by Petitioner M. Raynor regarding the denial

of the Mandamus, Maureen Raynor, Peti-

tioner v. United States District Court, District

Of Nebraska, Respondent, No. 07-1197. See

Doc. F, App. 49.

The second round of proceedings initiated after

the stipulation settlement is as follows:

a. Petitioners timely appealed to the

Bankruptcy Appellant Panel (the “BAP”),

and on June 4, 2009, the BAP affirmed the

January 28, 2007 decision of the Bankruptcy

Court rejecting the Standard Rule and apply-

ing the Modern Rule. See Doc. B, App. 16-30.

b. Petitioners timely appealed to the

Eighth Circuit, and on August 23, 2010, the

Eighth Circuit also rejected the Standard

Rule and upheld the application of the Mod-

ern Rule. See Doc. A, App. 1-15.

c. After becoming aware of another

Eighth Circuit Panel decision in Mader,

supra, and Judge Beam’s dissent therein,

Petitioners timely filed a Petition for Rehear-

ing En Banc which was denied without opin-

ion on October 20, 2010. See Doc. G, App. 50.

REASONS FOR GRANTING THE PETITION

While this Court has decided that the Standard

Rule is the appropriate rule to determine the limita-

tion period under the Federal limitation statutes, the

Circuit Courts have adopted the Modern Rule in a

majority of the cases that have come before them

involving this issue and have thereafter remained

wedded to the Modern Rule even in the face of this

Court’s repeated decisions applying the Standard

Rule. An impermissible schism results when the

lower courts deviate from and do not apply the law

and rules of law adopted by this Court. See Hutto v.

Davis, 454 U.S. 370, 375 (1982) (L{UJunless we wish

anarchy to prevail within the federal judicial system,

a precedent of this Court must be followed by the

lower federal courts no matter how misguided the

judges of those courts may think it to be.).

Only those few cases that this Court accepts and

which involve, in part, limitation period issues, are

assured the benefit of the Standard Rule under the

law as decided by this Court. Cases that do not make

it to this Court and which also involve limitation

period issues, as in this case, are subjected to a

different rule, i.e., the Modern Rule, in contravention

to the precedential rule of law established by this

Court, and therefore are effected with a very different

outcome from what this Court intended by its prece-

dent. This disparate treatment in the determination

of the limitation period is an affront to the concept of

equal protection under the law.

This case is ideal for addressing the ever widen-

ing impermissible schism in the judicial system on

this issue and for ensuring ALL equal protection

under the law because it concerns one, and only one

issue to be resolved: Does the Standard Rule or the

Modern Rule determine the limitation period?

THE STANDARD RULE: Pursuant to the

Standard Rule, unless the language of a limitation

statute provides otherwise, a limitation period com-

mences when the party has a complete and present

cause of action. See Reiter v. Cooper, 507 U.S. 258,

267 (1993) (While it is theoretically possible for a

statute to create a cause of action that accrues at one

time for the purpose of calculating when the statute

of limitations begins to run, but at another time for

the purpose of bringing suit, we will not infer such an

odd result in the absence of any such indication in the

statute.); Graham County Soil & Water Conservation

Dist. v. United States ex rel., Wilson, 545 U.S. 409,

418 (2005) (We have repeatedly recognized that

Congress legislates against the “standard rule that

the limitations period commences when the plaintiff

has a complete and present cause of action.”); Bay

Area Laundry & Dry Cleaning Pension Trust Fund v.

Ferbar Corp., 522 U.S. 192, 201 (1997) (Unless Con-

gress has told us otherwise in the legislation at issue,

a cause of action does not become “complete and

present” for limitations purposes until the plaintiff

can file suit and obtain relief.); and, a concurring

opinion cited in Graham County Soil, TRW Inc. v.

Andrews, 534 U.S. 19, 37 (2001) (Bay Area Laundry

quoted approvingly our statement in Clark v. Iowa

City, 87 U.S. 583, 20 Wall. 583, 589, 22 L. Ed. 427

(1875), that “all statutes of limitation begin to run

when the right of action is complete....” This is

unquestionably the traditional rule: absent other

indication, a statute of limitations begins to run at

the time the plaintiff “has the right to apply to the

court for relief. ...” 1H. Wood, Limitation of Actions

§ 122a, p. 684 (4th ed. 1916).).

Graham County Soil further emboldened the

Standard Rule by referring to the rule as the “default

rule” (545 U.S. at 518) and mandating the application

of the Standard Rule “where ... there are two plau-

sible constructions of a statute of limitations, we

should adopt the construction that starts the time

limit running when the cause of action ... accrues”

(545 U.S. at 519).

The implication of the reference to the “default

rule” used in Graham County Soil and phrases such

as “Congress legislates against the standard rule” in

Graham County Soil, “Unless Congress has told us

otherwise in the legislation at issue” in Bay Area

Laundry, “absence of any such indication in the

statute” in Rieter, and “all statutes of limitation begin

to run when the right of action is complete” in Clark

(cited to two of these recent cases), is that:

a. the Standard Rule applies to all

Federal limitation statutes excepting only

statutes in which the explicit language of the

limitation statute provides otherwise; and

b. when the statutory language is am-

biguous, the Standard Rule is applied.

In contrast, the Modern Rule resorts to and relies

upon Rule 6(a) which is contrary to the foregoing

decisions of this Court, the propagator of Rule 6(a).

THE MODERN RULE: The Modern Rule

applies Rule 6(a) in two ways: first, to separate

the commencement of a limitation period from the

accrual of the cause of action by one day and second,

to add days at the end of a limitation period if the

limitation period ends on a Saturday, Sunday, or

a legal holiday as necessary, to include the next

business day. Pursuant to the Modern Rule, the first

year (and only the first year in a multi-year limita-

tion statute) effectively becomes a 366-day year with

the anniversary date of the accrual of the cause of

action constituting the last day of the first year. Ifa

one year limitation period is applicable and the

anniversary day happens to end on a Saturday, the

limitation period can become a 369-day year, e.g.,

Sunday (367th day) followed legal holiday (368th day)

means the next Tuesday (369th day) is the last day

of the limitation period. Cases premised upon the

same cause of action and the same limitation statute

have different limitation periods depending upon the

day the limitation period ends.

The Modern Rule is premised upon this Court’s

decision in Union Natl Bank of Wichita Kan. v.

Lamb, 337 U.S. 38 (1949). Lamb did not involve a

limitation statute nor has this Court, since 1949, ever

cited Lamb when interpreting a limitation statute.

The Circuit Courts’ reliance upon Lamb is misplaced.

In the movement from the Standard Rule to the

Modern Rule by the Circuit Courts, the earlier Circuit

Court decisions cite Lamb, while later Circuit Court

decisions simply cite to Rule 6(a) as support. Ignoring

cases involving the Judicial grace period for the

Antiterrorism and Effective Death Penalty Act cases

(a grace period is not a limitation statute), the follow-

ing cases represent the evolvement of the adoption

(based upon Petitioner’s research) of the Modern Rule

in civil cases by the Circuit Courts, to wit:

Cases which cited Lamb as supporting their deci-

sion:

YEAR Citation: (to decision but not to Lamb)

1949 Simon v. Commissioner, 176 F.2d 230, 232

(2d Cir. 1949)

1951 Wilkes v. United States, 192 F.2d 128, 129

(5th Cir. 1951)

1955 United States v. Peters, 220 F.2d 544, 546

(10th Cir. 1955)

1967 Wirtz v. Peninsula Shipbuilders Assoc., 382

I. 2d 237, 240 (4th Cir. 1967)

1984 Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.

1984)

1989 United Mine Workers, International Union v.

Dole, 870 F.2d 662, 665 (D.C. Cir. 1989)

1993 Wood-lvey Sys. Corp. v. United States, 4 F.3d

961, 964 (Fed. Cir. 1993)

1995 Bartlik v. United States DOL, 62 F.3d 163,

166 (6th Cir. 1995)

2010 Mader v. United States, 2010 U.S. App.

LEXIS 18142 (8th Cir. Neb. Aug. 31, 2010)

- Cases which did not cite Lamb, but relied upon

Rule 6(a):

1982 Harbor Nat'l Bank v. Sid Kumins, Inc., 696

F.2d 9 (1st Cir. 1982)

1987 Tribue v. United States, 826 F.2d 633, 635

(7th Cir. 1987)

1988 Maahs v. United States, 840 F.2d 863 (11th

Cir. 1988)

2002 Sain v. City of Bend, 309 F.3d 1134, 1136-

1137 (9th Cir. 2002)

2010 In re Raynor, 2010 U.S. App. LEXIS 17596

(8th Cir. Aug. 23, 2010)

In the order of adoption, the 2nd, 5th, 10th, 4th, 3rd,

D.C., Federal, 6th, and the 8th Circuit Courts of

Appeals adopted the Modern Rule relying, in part,

upon this Court’s decision in Lamb. The Circuit

Courts which cited only Rule 6(a) in the order of their

adoption of the Modern Rule are the Ist, 7th, 11th,

9th, and &th Circuit Courts of Appeals. Note that the

Sixth Circuit’s 1995 decision was the last Circuit

Court to adopt the Modern Rule while citing Lamb

and the Ninth Circuit adoption of the Modern Rule in

2002 citing to tule 6(a) occurred before this Court's

2005 decision in Graham County Soil where this

Court held:

in keeping with the default rule that

Congress generally drafts statutes of limita

tions to begin when the cause of action ac

crues. We have repeatedly recognized that

Congress legislates against the “standard

rule that the limitations period commences

when the plaintiff! has a complete and pre

sent cause of action.”

See 545 U.S. at 518.

Two Eighth Circuit cases are cited under the

rationale that the action of five of six Circuit Court

Judges addressing the issue form a_ plurality by

agreeing in Mader and Raynor that Rule 6(a) deter

mines when a limitation period commences

It would be unfair to represent that the above

Circuit Courts did not, in some cases, apply the

Standard Rule. The correct characterization is that

the Modern Rule is the Circuit Courts’ “default rule.”

MODERN RULE - RELIANCE UPON RULE

6(a) IS ERROR: A 1992 Eighth Circuit decision ap

proached the Rule 6(a) argument simply, directly and

correctly stating that “the Supreme Court decision in

Lamb, supra, is distinguishable because it applies

‘only to proceedings had after the institution of the

suit, such as the taking of an appeal, and has no

application to the late institution of an action.” See

Mattson v. U.S. West Communications, Inc., 967 F.2d

259, 262 (8th Cir. 1992) (Citation omitted). Mattson

also cited Fed. R. Civ. P- 82. The applicable portion of

Rule 82 provides: “These rules do not extend or limit

the jurisdiction of the district courts or the venue of

actions in those courts.” Rule 82 bankruptcy counter-

part is Fed. R. Bankr. P. 9030.

The reasoning in Mattson about the import of the

Procedural Rules finds support in this Court’s opin-

ions. See Walker v. Armco Steel Corp., 446 U.S. 740,

751 (1980) (“Rule 3 simply provides that an action is

commenced by filing the complaint and has as its

primary purpose the measuring of time periods that

begin running from the date of commencement; the

rule does not state that filing tolls the statute of

limitations.” 4 C. Wright & A. Miller, Federal Practice

and Procedure § 1057, p. 191 (1969).). Because Rule

6(a) does not become relevant until Fed. R. Civ. P. 3

becomes applicabie, pursuant to Walker, Rule 6(a)’s

“primary purpose” is measuring “time periods that

begin running from the date of commencement” of the

suit. It is inconsistent with the reasoning of this

Court in Walker to hold that Rule 6(a) reaches-back,

after Rule 3 is invoked, to determine a Federal limita-

tion period.

Likewise, Mattson’s reliance upon Rule 82 or re-

liance upon 28 U.S.C. § 2072(b) is supported by this

Court’s decisions. See Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1442

(2010) (What matters is what the rule itself regulates:

If it governs only “the manner and the means” by

which the litigants’ rights are “enforced,” it is valid; if

it alters “the rules of decision by which [the] court

will adjudicate [those] rights,” it is not.). In this case,

the Panel stated:

We... hold that $ 546(a) is not jurisdictional

and thus Rule 9006(a) is the proper time-

calculation method to use when applying

§ 546’s limitations period.

See Doc. A, App. 10-11.

When a Rule is the only reason a stale claim is

prosecuted, the Rule extends far beyond governing

only “the manner and the means” it invalidates an

affirmative defense that has been timely raised.

Invalidating an affirmative defense that is determi-

native of the litigation clearly alters “the rules of

decision by which [the] court will adjudicate [those]

rights.” Applying Bankr. Rule 9006(a) in this manner

violates Bankr. Rule 9030 and 28 U.S.C. § 2075.

The Panel’s reliance upon jurisdictional rationale

is also misplaced. Petitioners do not contest that an

affirmative defense can be waived or that the parties

to the dispute can toll limitation statute’s application.

Each of the foregoing involves consent, either implied

or express. Because Petitioners can consent does not

mean the Panel can mandate their consent. It is

inconceivable that a court reasons that the concept of

consent, that is volitional, supports involuntarily

submitting to the prosecution of a stale claim. Does

that mean because Petitioners can surrender their

citizenship, the court has a right to involuntarily

strip Petitioners of their citizenship? Common sense

is missing.

THE PANEL’S REASONING: The Panel held

that the language of Code $ 546(a)(1)(A), “2 years

after the entry of the order for relief,” means in this

case, when an order for relief is entered on September

13, 2004, the word “after” means the limitation period

commences September 14, 2004. Specifically, the Panel

held:

Thus, we conclude that “after September 13”

is September 14 and thereafter, meaning

that any action filed prior to September 14,

2006, would not be time-barred.

See Doc. A, App. 7-8.

The above interpretation can only be reached by

adding language to the statute because the statutory

language references an event and not a day. For

example, the bracketed language must be inserted to

support the Panel’s reasoning:

2 years after the [day of the] entry of the

order for relief. ...

Otherwise the statute must be rewritten

2 years after the [day] entry-ef the order

for relief [is entered]... .

The Panel extended the limitation period by reading

words into the statute. See Lamie v. United States

Trustee, 540 U.S. 526, 537 (2004) (courts should not

add an “absent word” to a statute; “there is a basic

difference between filling a gap left by Congress’

silence and rewriting rules that Congress has affirm-

atively and specifically enacted.”). The Panel is

rewriting the legislation. Query: what is the meaning

of “after” if the petition was filed on September 17,

2004, a Friday? Is the next step to find that the

limitation period doesn’t commence until Monday,

September 20, 2004, adding more days on the front

end of a limitation period?

Nowhere in its decision did the Panel argue that

the cause of action did not accrue on September 13,

2004.

Further, Congress has determined, in Code

§ 546(a)(1)(B), that in many cases, a one year limita-

tion period is applicable. The Trustee in this case was

appointed on June 3, 2005. See Doc. D, App. 41.

Applying the Standard Rule, the Trustee had more

than the one year that was provided pursuant to

subsection (B) of Code § 546(a)(1) or 467 days, but

nevertheless, instigated the lhtigation on September

13, 2006. The action is time-barred.

Lastly, the Panel’s decision in this case is also in

conflict with another Eighth Circuit Panel’s decision

made in McCuskey v. Central Trailer Servs., 37 F.3d

1329 (8th Cir. 1994). In dealing with the predecessor

statute of Code $546, i.e., $546 before the 1994

Amendments, the Eighth Circuit held “liJn particular,

we agree that a ‘plain reading of section 546(a) is that

the two-year statute of limitations begins running

from the date the first trustee is appointed ... ’.”

McCuskey at 1332. Since the subsequent amend-

ments to the Bankruptcy Code did not conflict with

the holding in McCuskey, its holding has been recog-

nized as having continuing applicability. See Lee v.

National Home Ctrs., Inc. (In re Bodenstein), 253 B.R.

46, 50 (B.A.P. 8th Cir. Ark. 2000) (Citing McCuskey,

the Court held that the plain language of Section

546(a) makes it clear that the statute of limitations

runs from the date the first trustee is appointed.).

The continuing applicability of McCuskey has led to

absurd results when Code § 546(a)(1)(A) is governed

by the Modern Rule and Code $ 546(a)(1)(B) is gov-

erned by the Standard Rule. See In re Olsen, 2001

Bankr. LEXIS 2142 (Bankr. D. Neb. Oct. 26, 2001).

However, the McCuskey holding was resolved by this

Panel, like Mattson, by turning a blind eye to the

decision and setting aside Petitioners’ indefeasible

right to have current precedent applied absent an en

banc ruling.

THE PANEL AND STARE DECISIS: In a de-

cision rendered by an Eighth Circuit panel in 2000,

the Eighth Circuit held:

Accordingly, we conclude that 8th Circuit

Rule 28AQ), insofar as it would allow us

to avoid the precedential effect of our prior

decisions, purports to expand the judicial

power beyond the bounds of Article III, and

is therefore unconstitutional.

See Anastasoff v. United States, 223 F.3d 898, 900

(8th Cir. 2000).

The opinion in Anastasoff was withdrawn be-

cause a Rehearing Fin Banc petition was granted. See

Anastasoff v. United States, 2000 U.S. App. LEXIS

33247 (8th Cir. 2000).

The opinion in Anastasoff is a dissertation on the

force and effect of Doctrine of Stare Decisis.

Now, less than ten years later, the Eighth Circuit

has retreated from Anastasoff and the import of

precedent by ignoring citations to Mattson and

McCuskey and also, by not granting Petitioners’

request for a Rehearing En Banc notwithstanding

Judge Beam’s dissent citing Mattson. Justice Frank-

furter, in a concurring opinion, stated:

Rehearings en banc by these courts, which

sit in panels, are to some extent necessary in

order to resolve conflicts between panels.

This is the dominant concern.

See Western P. R. Corp. v. Western P. R. Co., 345 U.S.

247, 270 (1953).

In addition to arguing conflicts with the Eighth

Circuit’s own precedent, the Petitioner went to great

lengths to argue that it is not just this Court’s deci-

sions that are binding but also this Court’s mode of

analysis.

The Eighth Circuit adopted the Modern Rule

years after the majority of circuits adopted it (see

table above), but unlike the Eighth Circuit, those

circuits did not have the benefit of Reiter decided by

this Court in 1993; Bay Area Laundry decided by this

Court in 1997; TRW Inc. decided by this Court in

2001; Graham County Soil decided by this Court in

2005, and a number of other cases decided by this

Court upholding the application of the Standard Rule

in determining limitation periods. Additionally, when

statutory interpretation is involved as in this case,

Stare Decisis has more force and effect. See Ill. Brick

Co. v. Ill., 481 U.S. 720, 736 (1977) (Considerations of

stare decisis weigh heavily in the area of statutory

construction, where Congress is free to change the

court’s interpretation of its legislation.). The meta-

morphosis in jurisprudence of the Eighth Circuit from

Anastasoff, on the one hand, to Mader and Raynor, on

the other hand, is incongruent especially given the

plain language of this Court’s precedent. See Hutto v.

Davis, 454 U.S. 370, 374-375 (1982) (More important-

ly, however, the Court of Appeals could be viewed as

having ignored, consciously or unconsciously, the

hierarchy of the federal court system created by the

Constitution and Congress.).

Even the Appellee’s brief submitted to the Panel

provided:

While the U.S. Supreme Court cases cited by

the Appellant adopt the traditional rule

and hold that the statute of limitations be-

gins to run at the time the plaintiff has the

295

right to apply for relief rejecting attempts to

extend the bar date to file an action on the

basis of the injury discovery rule and other

exceptions, these opinions do not address the

calculation of bar dates for statutes on limi-

tations provisions stated in years.

See Appellee’s Brief, Case: 09-2464 Page: 16 Date

Filed: 08/19/2009 Entry ID: 3578437 (Emphasis

added).

Notwithstanding that there was NO disagree-

ment that this Court applied the Standard Rule (a/k/a

the Traditional Rule), the Panel held:

these [Supreme Court] opinions do not ad-

dress the calculation of bar dates for statutes

of limitations provisions stated in years,

which is the sole issue in this case. See Doc.

A, App. 13 (Emphasis added).

The Panel’s reliance upon the years distinction is

misplaced. Bay Area Laundry addressed 29 U.S.C.

§ 1451(f) (6 year limitation statute); TRW, Inc. ad-

dressed 15 U.S.C. $ 1681p (2 years from date of

discovery or 5 years from date of act giving rise to

liability); and Reiter addressed 49 U.S.C. $ 11706 (2

years). All of these cases addressed limitation stat-

utes expressed in years, and therefore, are appropri-

ately relevant in dispelling the Panel’s argument.

Further, this Court’s all-encompassing language quoted

by Petitioners to the Panel did not support the years

distinction, yet Petitioners’ efforts were of no avail

thus requiring this application to be presented to this

Court. See Thurston Motor Lines, Inc. v. Jordan K.

Rand, Ltd., 460 U.S. 533, 535 (1983) (Needless to say,

only this Court may overrule one of its precedents. ).

LIMITATION STATUTES REPRESENT PUB-

LIC POLICY: In Chase Securities Corporation ov.

Donaldson, 325 U.S. 304, 314 (1945), this Court held:

Statutes of limitation find their justification

in necessity and convenience rather than in

logic. They represent expedients, rather than

principles. ... They represent a public pol-

icy about the privilege to litigate (Citations

omitted; Emphasis added).

The Eighth Circuit, citing to this Court’s precedent,

has held that “strict adherence to such limitations

periods ‘is the best guarantee of evenhanded admin-

istration of the law.’” See Union Pac. R.R. v. Beck-

ham, 138 F.3d 325, 330 (8th Cir. 1998), citing to

Mohasco Corp. v. Silver, 447 U.S. 807, 826, 65

L. Ed. 2d 532, 100 S. Ct. 2486 (1980).

Limitation statutes are public policy determining

when the right to litigate has ended.

“The purpose of the Bankruptcy Code is to pro-

vide the honest debtor with a ‘fresh start’.” See 1

Bankruptcy Practice Handbook § 6:30 (2d ed.).

Both the public policy behind the Congressional

adoption of limitation statutes as well as the fresh

start purpose of the bankruptcy code augment the

reasons why this Court should grant the requested

relief.

CONCLUSION

The petition for a writ of certiorari should be

granted.

November 9, 2010

Respectfully submitted,

JOHN P. RAYNOR

RAYNOR, RENSCH & PFEIFFER

10110 Nicholas Street,

Suite 102

Omaha, Nebraska 68114

Telephone: (402) 498-4400

App. 1

APPENDIX A

In re: John P. Raynor, Debtor.

Richard D. Myers, Trustee of the John P.

Raynor Chapter 7 Bankruptcy, Appellee,

Maureen Raynor;

John Patrick Raynor, Appellants.

No. 09-2464

UNITED STATES COURT OF APPEALS

fOR THE EIGHTH CIRCUIT

2010 U.S. App. LEXIS 17596;

Bankr. L. Rep. (CCH) P81,836;

53 Bankr. Ct. Dec. 144

March 9, 2010, Submitted

August 23, 2010, Filed

COUNSEL: For Richard D. Myers, Trustee of the

John P. Raynor Chapter 7 Bankruptcy, Appellee:

Robert Lawrence Lepp, Alan E. Pedersen, MCGILL &

GOTSDINER, Omaha, NE.

For Maureen Raynor, Appellant: John Patrick

Raynor, RAYNOR & RENSCH, Omaha, NE.

John Patrick Raynor, Appellant, Pro se, Omaha, NE.

JUDGES: Before SMITH, BENTON, and SHEP-

HERD, Circuit Judges.

OPINION BY: SMITH

App. 2

OPINION

SMITH, Circuit Judge.

Randy Myers, a Chapter 7 trustee, brought an

adversary proceeding to avoid certain transfers that

debtor John Raynor (“John”) had made to his wife,

Maureen Raynor (“Maureen”). The district court

upheld the bankruptcy court’s denial of Maureen’s

motion to dismiss the suit as time-barred by the

statute of limitations. John intervened and _ filed

his own motion to dismiss the trustee’s claims as

untimely. The bankruptcy court denied this motion.

The trustee and debtors then entered into a stipu-

lated judgment, with the debtors reserving the right

to appeal the timeliness issue to an Eighth Circuit

Bankruptcy Appellate Panel (BAP). On appeal, the

BAP affirmed the stipulated judgment entered by the

bankruptcy court, ruling that the BAP must defer to

the district court’s original determination that the

cause of action was not time-barred and, pursuant to

the law of the case doctrine, declined to revisit the

issue. The debtors appeal the decision of the BAP,

again arguing that the statute of limitations barred

Myers’s avoidance suit. We affirm.

I. Background

On September 13, 2004, John filed a voluntary

Chapter 11 bankruptcy petition, and Myers was

1 ° e,° ane

John later converted his petition to a Chapter 7 petition.

App. 3

appointed trustee. On September 13, 2006, Myers

filed an adversary proceeding against Maureen,

seeking to avoid several transfers John made to

Maureen. Maureen filed a motion to dismiss the

trustee’s suit as time-barred under 11 U.S.C. § 546(a),

which the bankruptcy court denied. Maureen brought

an interlocutory appeal to the district court, which in

a November 21, 2007 order affirmed the bankruptcy

court’s orders denying Maureen’s motion to dismiss.

The district court concluded that Myers timely filed

the adversary proceeding because the _ time-

computation rules found in Federal Rule of Bank-

ruptcy Procedure 9006(a) applied to the case and

therefore calculation of the limitations period found

in § 546(a) would begin on the day following the date

the bankruptcy petition was filed September 14,

2004 — and end on the anniversary date of the peti

tion filing — September 13, 2006. This court and the

Supreme Court denied Maureen’s petitions for man-

damus and certiorari, respectively.

Eventually, on October 6, 2008, John filed a

motion to dismiss, again on the basis that Myers’s

motion was time-barred. The bankruptcy court de-

nied John’s motion. The Raynors jointly appealed this

order to the BAP, which denied the Raynors’ motion

for leave to take an interlocutory appeal and dis-

missed the appeal. This court also denied the petition

for permission to appeal.

The Raynors then filed a stipulated judgment

with the bankruptcy court, settling the avoidance suit

for $ 76,391.12. The stipulated judgment allowed for

App. 4

the Raynors to appeal the timeliness issue to the BAP

and then pursue an appeal of the BAP decision to this

court.

The BAP affirmed the stipulated judgment

entered by the bankruptcy court, deferring to the

district court’s November 21, 2007 determination that

the cause of action was not time-barred and, pursu-/

ant to the law of the case doctrine, declined to revisit

the issue.’

I]. Discussion

The Raynors argue that the BAP erred in finding

that the trustee’s September 13, 2006 complaint was

timely filed under Rule 9006(a) and § 546(a). Th

Raynors assert that Supreme Court precedent hold

that a limitations period must begin to run the day

that the cause of action accrues and therefore the

BAP erroneously held that the period began the day

after the cause of action accrued. Myers maintains

that under the computation rules of Rule 9O0G6(a) the

statute of limitations had not run until September 14,

2004, so a complaint for relief filed on the anniver-

sary date of the entry of the order — September 13,

2004 — is timely.

* The district court in this case was sitting as the appellate

court

App. 5

A. Law of the Case

As an initial concern, we address Myers’s argu-

ment that we should not review this matter because

of the law of the case doctrine. We disagree. “Law of

the case” is a policy of deference under which “a court

should not reopen issues decided in earlier stages of

the same litigation.” Agostini v. Felton, 521 U.S. 203,

236, 117 S.Ct. 1997, 1388 L. Ed. 2d 391 (1997); see

also Little Earth of the United Tribes, Inc. v. United

States Dep’t of Hous. & Urban Dev., 807 F.2d 1433,

1438 (8th Cir. 1986) (“The law of the case doctrine

applies to issues implicitly decided in earlier stages of

the same case.”). The law of the case “prevents the

relitigation of a settled issue in a case and requires

courts to adhere to decisions made in earlier proceed-

ings in order to ensure uniformity of decisions, pro-

tect the expectations of the parties, and promote

judicial economy.” United States v. Bartsh, 69 F.3d

864, 866,(8th Cir. 1995). We have held that “[w]hen

an appellate court remands a case ... all issues

decided by the appellate court become the law of the

case... .” Id.

“Law of the case terminology is often employed to

express the principle that inferior tribunals are

bound to honor the mandate of superior courts within

a single judicial system.” Jd. (internal quotations and

citation omitted). “When an appellate court remands

a case to the district court, all issues decided by the

appellate court become the law of the case, and the

district court on remand must adhere to any limita-

tions imposed on its function at resentencing by the

App. 6

appellate court.” /d. (internal quotations and citations

omitted). In fact, all the cases that Myers cites in

support of his argument that we decline review

concern inferior courts following the decisions of

superior courts. Myers, in essence, asks that we

construe the doctrine to hold the opposite — that

supenor courts are bound by decisions of inferior

courts which act as appellate courts. Myers miscon-

strues the law of the case doctrine. As the reviewing

court, we are bound by neither the district court nor

the BAP decision.

The law of the case doctrine is inapplicable to

this case. This case involves direct appellate review

by this court of trial and intermediary appellate

decisions. In doing so, we are not bound by the deci-

sions of inferior courts, even lower courts acting as an

appellate court. Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100

L. Ed. 2d 811 (1988) (“Just as a district court’s adher-

ence to law of the case cannot insulate an issue from

appellate review, a [BAP’s] adherence to the law of

the case cannot insulate an issue from [a superior

court’s] review.”).

B. Statute of Limitations

Having concluded that we are not bound by any

previous decisions in this case, we turn to the sole

issue on appeal — whether Myers’s September 13,

2006 complaint is time-barred by § 546. As this case

presents an issue of statutory interpretation, our

App. 7

review is de novo. United States v. Templeton, 378

F.3d 845, 849 (8th Cir. 2004). In addition, “[t]he issue

of whether a suit is time-barred is a question of

law....” McCord v. Minn. Mut. Life Ins. Co. Sales

Practices Litig. (In re Minn. Mut. Life Ins. Co. Sales

Practices Litig.), 346 F.3d 830, 835 (8th Cir. 2003). We

review questions of law de novo. DeBold v. Case, 452

F.3d 756, 761 (8th Cir. 2006).

1. Statutory Construction

The Raynors argue that the trustee’s suit against

Maureen — which was filed on the two-year anniver-

sary date of the Raynor’s petition — is time-barred by

§ 546 of the Bankruptcy Code because it was filed “2

- 9

years after the entry of the order of relief

Section 546 provides, in relevant part:

(a) An action or proceeding under section

544, 545, 547, 548, or 553 of this title may

not be commenced after...

(1) the later of

(A) 2 years after the entry of the

order for relief. ...

We construe the plain language of § 546 to set the

statute of limitations period as a full two years, which

we conclude in this case, would last from September

13, 2004, to September 13, 2006. The statute plainly

forbids commencement of an action after “2 years

after the entry of the order for relief... .” Thus, we

conclude that “after September 13” is September 14

App. 8

and thereafter, meaning that any action filed prior

to September 14, 2006, would not be time-barred.

“When we find the terms of a statute unambiguous,

judicial inquiry is complete....” Rubin v. United

States, 449 U.S. 424, 430, 101 S. Ct. 698, 66 L. Ed. 2d

633 (1981). Therefore, under this plain-language

review, we hold that Myers’s complaint was timely, as

it was filed before midnight on the anniversary date

of the entry of the order for relief; in other words, by

11:59 p.m. on September 13, 2006. This is not a novel

interpretation of this statute. See also Callahan v.

Moore (In re Gen. Creations, Inc.), 343 B.R. 548, 552

(Bankr. W.D. Va. 2006) (holding that where order for

relief was entered on July 22, 2003, “the statute of

limitations set forth in 11 U.S.C. § 546(a)(1)(A) ended

at midnight on July 22, 2005”); In re Steck, 298 B.R.

244, 249 (Bankr. D.N.J. 2003) (holding that where the

order for relief was entered on October 10, 2000, “the

trustee had to commence an avoidance action no later

than October 10, 2002”) (emphasis added).

Myers proffers an alternative approach to calcu-

lating the appropriate limitations period. Myers

asserts that Rule 9006(a) of the Federal Rules of

Bankruptcy Procedure (adopting Rule 6(a) of the

Federal Rules of Civil Procedure) governs the compu-

tation of time when a period of time to take action is

prescribed by an applicable statute, such as § 546.

The relevant portion of Rule 9006 provides:

(a) Computing time

App. 9

The following rules apply in computing

any time period specified in these rules, in

the Federal Rules of Civil Procedure, in any

local rule or court order, or in any statute

that does not specify a method of computing

time.

(1) Period stated in days or a longer

unit

When the period is stated in days or a

longer unit of time:

(A) exclude the day of the event

that triggers the period;

(B) count every day, including in-

termediate Saturdays, Sundays, and

legal holidays; and

period, but if the last day is a Sat-

urday, Sunday, or legal holiday, the

period continues to run until the end

of the next day that is not a Satur-

day, Sunday, or legal holiday.

(Emphasis added.)

If Rule 9006(a) applies, Myers’s complaint is still

timely. Rule 9006(a) states that “the day of the event

that triggers the period” — September 13, 2004 — shall

not be included in the computation of the statute of

limitations, meaning that the limitations period must

begin, at its earliest, on the next day, September 14.

Under this analysis, the limitations period in § 546 —

“2 years after the entry of the order for relief” —

App. 10

certainly would not have expired on September 13,

2006.

In deciding whether Rule 9006(a) applies to

§ 546, which is at the core of the parties’ disagree-

ment, we address for the first time the specific ques-

tion of whether § 546(a) is jurisdictional or simply a

statute of limitations. A time-computation rule, such

as Rule 9006, is to be applied only when a statute of

limitations is not jurisdictional. See Fed. R. Civ. P. 82

(preventing the use of the Rules of Civil Procedure to

extend the jurisdiction of United States district

courts); Moore v. United States, 173 F.3d 1181, 1134

(8th Cir. 1999) (“[Blefore determining whether we

should apply [a time-computation statute] to the one-

year time limit in § 2255, we must first determine

whether that time limit is jurisdictional.”). Therefore,

if § 546 is not jurisdictional, the limitations period

time-counting would start per Rule 9006(a) on the

day following the date the petition was filed and end

on the anniversary date of the petition filing.

We have not previously addressed this exact

issue. We do so now and agree with a majority of

courts that have addressed the applicability of Rule

9006(a) to § 546(a)’ and hold that § 546(a) is not

* See Pugh v. Brook (In re Pugh), 158 F.3d 530, 534-36

(11th Cir. 1998) (holding that the limitations period in 11 U.S.C.

§ 546(a) is a waivable statute of limitations subject to estoppel

and equitable tolling, uot a jurisdictional bar); Callahan v. Moore

(In re Gen. Creations, Inc.), 343 B.R. 548, 550 (Bankr. W.D.

Va. 2006) (“Rule 9006(a) of the Federal Rules of Bankruptcy

(Continued on following page)

App. 11

jurisdictional and thus Rule 9006(a) is the proper

time-calculation method to use when applying § 546’s

limitations period. Applying Rule 9006(a), the limita-

tions period in § 546(«) would begin on the day follow-

ing the date the petition was filed — September 14,

2004 — and end on the anniversary date of the peti-

tion filing — September 13, 2006 — making Myers’s

September 13, 2006 filing of the adversary proceeding

against Maureen Raynor timely.

Finally, we note that the plain language of Rule

9006 shows that it applies in this case regardless of

how § 546(a) is characterized. By its own terms, Rule

9006 applies to “any statute that does not specify a

method of computing time.” Section 546 does not

contain a method of computing time, making Rule

9006(a) applicable. See Grella v. Zimmerman (Un re

Procedure governs the computation of time when a period of

time to take action is prescribed by an applicable statute, such

as 11 U.S.C. § 546.”); S. Technical Coll. Inc. v. Ark. Television

Co. (In re S. Technical Coll., Inc.), 172 B.R. 253, 254 (Bankr. E.

D. Ark. 1994) (applying Rule 9006(a) to two-year limitations

period in § 546 and finding that date on which bankruptcy

petition was filed was excluded from two-year period in deciding

whether avoidance proceeding was timely); Boatman v. Furnia

(Matter of Sutera), 157 B.R. 519, 523 (Bankr. D.Conn. 1993)

(“Congress intended that the Federal Rules of Bankruptcy

Procedure be applicable in full, and without exception, to all

provisions of the Bankruptcy Code, and that Rule 9006(a) shall

apply to... § 546(a).”); Amdura Corp. v. Faegre & Benson (In re

Amdura Corp.), 142 B.R. 433, 4385 (Bankr. D. Colo. 1992)

(stating that “an abundance of case law in other circuits”

supports idea that Rule 9006(a) applies to calculation of two-

year statute of limitations in § 546(a)).

App. 12

Art & Co., Inc.), 179 B.R. 757, 762 (Bankr. D. Mass.

1995) (““However, by its own terms, Rule 9006 applies

to the computation of time ‘under any applicable

statute’, which obviously includes Bankruptcy Code

Section 546(a).”).

In conclusion, we hold that the plain language of

§ 546(a) provides that a complaint filed on the two-

year anniversary of the entry of the order for relief,

such as Myers’s complaint, is not time-barred. Addi-

tionally, the time-computation rules of Rule 9006(a)

apply to § 546, also making Myers’s complaint timely.

2. Supreme Court Precedent

The Raynors also argue that Supreme Court case

law requires a different result. The Raynors maintain

that the accrual of a cause of action and the com-

mencement of a statute of limitations statute begin

together and that Supreme Court case law supports

such construction (referred to by the Raynors as the

“traditional rule”). The Raynors contend that Myers

relied upon what they describe as the “modern rule”

to separate the date of accrual of the cause of action

from the commencement of the limitation statute by

one day.

The Supreme Court decisions cited by the

Raynors that employ the “traditional rule” for deter-

mining jurisdictional issues are inapposite and do not

resolve this case in the Raynors’ favor. See Graham

County Soil & Water Conservation Dist. v. United

States, 545 U.S. 409, 125 S. Ct. 2444, 162 L. Ed. 2d

App. 13

390 (2005); Bay Area Laundry & Dry Cleaning Pen-

sion Trust Fund v. Ferbar Corp. of Cal, Inc., 522 U.S.

192, 118 S, Ct. 542, 1389 L. Ed. 2d 553 (1997). The

Supreme Court cases cited by the Raynors do, as the

Raynors assert, employ the rule that the statute of

limitations begins to run at the time the plaintiff has

the right to apply for relief, thus rejecting attempts

to extend the bar date to file an action on the basis

of the injury discovery rule and other exceptions.

Graham County, 545 U.S. at 418; Bay Area Laundry,

522 U.S. at 201. However, these opinions do not

address the calculation of bar dates for statutes of

limitations provisions stated in years, which is the

sole issue in this case.

The Supreme Court has stated that “the default

rule {is} that Congress generally drafts statutes of

limitations to begin when the cause of action ac-

crues.” Graham County, 545 U.S. at 418. “[The Court

has] repeatedly recognized that Congress legislates

against the standard rule that the limitations period

commences when the plaintiff has a complete and

present cause of action.” Jd. (internal quotations and

citation omitted). However, the argument in this case

is not that the limitations period should be tolled

until there is a complete and present cause of action

but instead that the proper limitations statute and

time-calculating method are found in § 546 and Rule

9006(a).

Applying Rule 9006(a) does not run afoul of

Graham. Rule 9006 does not change any rule that the

limitations period commences when the cause of

App. 14

action accrues; it simply provides a method to cal-

culate that limitations period’s precise dimensions.

Therefore, Rule 9006(a) does not change the actual

length of the limitations period, which is what

the “traditional rule” warns against. Additionally,

Graham considered a different issue: whether the six-

year statute of limitations under the False Claims

Act controlled retaliation claims under 31 U.S.C.

§ 3730(h) or if such a claim should be controlled by a

shorter statute of limitations set by state law. Jd. In

Graham, the Supreme Court reconciled two plausible

constructions of a statute of limitations, but in this

case there is only one plausible construction of

§ 546(a). See id. at 419 (“[WJhere, as the case is here,

there are two plausible constructions of a statute of

limitations, we should adopt the construction that

starts the time limit running when the cause of action

... accrues.”). Graham is therefore distinguishable.

The Raynors also cite in support Bay Area Laun-

dry. In that case, the Supreme Court construed a

statute of limitations under the “traditional rule” to

avoid a situation where the limitations period might

begin to run before a cause of action had ever ac-

crued. 522 U.S. at 201. In a subsequent case, the

Court noted that “[t]he question presented in Bay

Area Laundry was whether a statute of limitations

could commence to run on one day while the right to

sue ripened on a later day. We answered that ques-

tion, and only that question, ‘no,’ unless the statute

indicates otherwise.” T’RW Inc. v. Andrews, 534 U.S.

19, 34 n.6, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001).

App. 15

Again, the question we address was not presented in

Bay Area Laundry, making the case inapposite.

III. Conclusion

For the reasons stated, we affirm.

App. 16

APPENDIX B

In re: John Patrick Raynor, Debtor.

Richard D. Myers, Trustee, Plaintiff-Appellee,

Vv.

Maureen Raynor, Defendant-Appellant,

John Patrick Raynor,

Intervenor defendant-Appellant.

No. 09-6012

UNITED STATES

BANKRUPTCY APPELLATE PANEL

FOR THE EIGHTH CIRCUIT

406 B.R. 375; 2009 Bankr. LEXIS 1301];

62 Collier Bankr. Cas. 2d (MB) 96;

5I Bankr. Ct. Dec. 190

April 27, 2009, Submitted

June 4, 2009, Filed

COUNSEL: For Richard D. Myers, Trustee of the

John P. Raynor Chapter 7 Bankruptcy, Plaintiff-

Appellee: Robert Lawrence Lepp, Alan E. Pedersen,

MCGILL & GOTSDINER, Omaha, NE.

For Maureen Raynor, Defendant-Appellant: John

Patrick Raynor, RAYNOR & RENSCH, Omaha, NE.

John Patrick Raynor, Intervenor defendant-Appellant,

Pro se, Omaha, NE.

JUDGES: Before KRESSEL, Chief Judge,

SCHERMER and VENTERS, Bankruptcy Judges.

OPINION BY: KRESSEL

App. 17

OPINION

KRESSEL, Chief Judge.

Maureen Raynor and John P. Raynor appeal the

bankruptcy court’s' stipulated judgment order of

March 9, 2009. Because we defer to the previous

appellate decision of the district court” that the

trustee’s suit was not time-barred, we affirm.

BACKGROUND

John Patrick Raynor filed a voluntary chapter 1]

bankruptcy petition on September 13, 2004. On June

2, 2005, the court granted John’s motion to convert

his case from chapter 11 to chapter 7. Richard D.

Myers was appointed trustee. On September 13,

2006, the second anniversary of the filing of John’s

petition, Myers filed an adversary proceeding against

John’s wife, Maureen Raynor, seeking to avoid

several transfers’ of real property and marketable

securities made by John to Maureen. On November 6,

2006, Maureen filed a motion to dismiss the trustee’s

' The Honorable Timothy J. Mahoney, United State:

Bankruptcy Judve for the District of Nebraska

* The Honorable Richard G. Kopf, United States District

Judge tor the District of Nebraska

* The complaint included five counts: I, preferential trans

fers to or for the benefit of an insider within one year of date of

bankruptcy petition (11 U.S.C. § 547); I], III and IV, avoidance

and recovery of constructively fraudulent transfers (11 U.S.C

§§ 544, 548, 550, & 551 and § 36-705 of the Nebraska UFTA),

and V, improper, unauthorized post-petition transfers

App. 18

suit as time-barred. On January 26, 2007, the court

denied the motion. On February 5, 2007, Maureen

filed a motion for reconsideration. The motion was

denied on March 27, 2007.

Maureen brought an interlocutory appeal to the

district court. The issue considered by the district

court was whether the trustee’s suit was time-barred

under 11 U.S.C. § 546(a). On November 21, 2007, the

district court affirmed’ the bankruptcy court’s orders

denying Maureen’s motions to dismiss and for recon-

sideration. The district court) concluded that the

adversary proceeding had been filed timely because

“11 U.S.C. § 546(a) is not jurisdictional, the time-

computation rules of Bankruptcy Rule 9006(a) apply,

and calculation of the limitations period in ll U.S.C

§ 546(a) would begin on the day following the date the

petition was filed — September 14, 2004 — and end

on the anniversary date of the petition filing — Sep-

tember 13, 2006.” Maureen petitioned the Eighth

Circuit Court of Appeals for writ of mandamus. Her

petition was denied on January 4, 2008. Maureen

then petitioned to the Supreme Court for a writ of

certiorari, but the petition was denied on May 27,

2008.

* Myers v. Raynor dn re Raynor), No. SO7CVI51L. 2007 US

Dist. LEXIS 86324 (D. Neb. Nov. 21, 2007)

App. 19

John intervened’ in the suit against Maureen

and filed his own motion to dismiss the suit on June

30, 2008, on the basis that the trustee’s pleadings “do

not state with particularity the circumstances consti-

tuting fraud in violation of F. R. Civ. Pro. 9(b) (“Rule

9”) (made applicable by F. R. Bankr. P. 7009)” and

“are baseless and unsupportable allegations filed in

violation of F. R. Bankr. P. 9011 (Rule 11”).” On July

10, 2008, John withdrew his motion to dismiss and

filed a motion to strike the trustee’s pleadings pursu-

ant to Bankruptcy Rules 7009 and 9011. John’s

motion to strike was denied on September 19, 2008.

On October 6, 2008, John filed another motion to

dismiss on the basis that the trustee’s motion was

time-barred, arguing that there existed “New law

stemming from the passage of the BAPCPA, the

Bright Line Rule, which is determinative of this

matter” and on the basis of “Authority of the Eighth

Circuit Bankruptcy Appellant Panel, not previously

considered by this Court which is determinative of

this matter.” On October 27, 2008, the bankruptcy

court denied John’s motion. The court addressed

John’s arguments but declined to reconsider its

previous determination that the suit was not time-

barred. The Raynors jointly appealed the October 27,

2008 order to the bankruptcy appellate panel. How-

ever, on December 4, 2008, we denied the Raynors’

* John’s standing is unclear to us, since the complaint seeks

no relief against him.

App. 20

motion for leave to take an interlocutory appeal and

dismissed the appeal. The Raynors filed a petition

with the Eighth Circuit Court of Appeals for per-

mission to appeal our October 27, 2008 order. On

January 16, 2009, the Court of Appeals denied the

Raynors’ petition.

On March 9, 2009, the trustee and Maureen filed

a stipulated judgment, settling the avoidance suit for

$ 76,391.12. It stated that “no appeal of any issue will

be taken except that the Defendant and Intervenor

shall maintain the right to file an appeal to the

Kighth Circuit Bankruptcy Appellate Panel (“BAP”),

limited to the statute of limitations issue, and the

Plaintiff shall maintain the right to argue that the

decisions issued in the prior appeal on the statute of

limitations issue should be controlling in this case.”

The stipulated judgment further provided, “Any party

to this adversary may pursue such further appeal of

the BAP’s decision to the Eighth Circuit and/or the

U.S. Supreme Court as may be permitted under

controlling law” and that the judgment constituted “a

final appealable order resolving claims that were or

could have been brought in the above captioned

adversary proceeding.”

The Raynors appeal from the March 9, 2009

stipulated order. The sole issue on appeal is whether

the complaint was time-barred.

App. 21

Standard of Review

“The issue of whether a suit is time-barred is a

question of law... .” McCord v. Minn. Mut. Life Ins.

Co. (In re Minn. Mut. Life Ins. Co. Sales Practices

Litig.), 346 F.3d 830, 835 (8th Cir. 2003). We review

questions of law de novo. DeBold v. Case, 452 F.3d

756, 761 (8th Cir. 2006); Green Tree Servicing, LLC v.

Coleman (In re Coleman), 392 B.R. 767, 769 (B.A.P.

8th Cir. 2008).

DISCUSSION

The order for relief in the Raynor case was

entered on September 13, 2004. The trustee initiated

the adversary proceeding against Maureen by filing

a complaint on September 13, 2006. The Raynors

argue that the trustee’s suit against Maureen is time-

barred by section 546 of the Bankruptcy Code, which

provides:

(a) An action or proceeding under section

544, 545, 547, 548, or 553 of this title may

not be commenced after the earlier of -

(1) the later of —

(A) 2 years after the entry of the

order for relief; or

(B) 1 year after the appointment or

election of the first trustee under

section 702, 1104, 1163, 1202, or

1302 of this title if such appoint-

ment or such election occurs before

App. 22

the expiration of the period specified

in subparagraph (A); or

(2) the time the case is closed or dis-

missed.

11 U.S.C. § 546(a). The Raynors maintain that Sep-

tember 12, 2004 was the last day the trustee could

have timely filed his complaint. The trustee argues

that the statute of limitations had not run until after

September 13, 2004, so that a complaint filed on the

anniversary date of the entry of the order for relief is

timely.

Under the Doctrine of Law of the Case, We

Defer to the District Court’s Determination

that the Trustee’s Suit was Timely.

The sole issue appealed by the Raynors is

whether the trustee’s suit against Maureen is time-

barred by 11 U.S.C. § 546(a). That precise issue was

addressed by the bankruptcy court and the district

court, and both courts concluded that the suit was not

time-barred. The Raynors now hope for a different

outcome on the same issue, and the trustee argues

that the law of the case doctrine should operate to

prevent the bankruptcy appellate panel from revisit-

ing the issue previously decided by the district court.

The Raynors misunderstand the doctrine of law

of the case, and argue that because a decision of a

single district court in the Eighth Circuit is not

binding precedent as to the bankruptcy appellate

panel, this panel should not defer to the district

App. 23

court’s earlier decisions. The issue of whether deci-

sions of the district court are binding on the bank-

ruptcy appellate panel is a separate and unrelated

question from the one presented in the Raynors’

appeal.

“Law of the case” is a policy of deference under

which “a court should not reopen issues decided in

earlier stages of the same litigation.” Agostini v.

Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138

L. Ed. 2d 391 (1997); see also Little Earth of the

United Tribes, Inc. v. United States Dept of Hous. &

Urban Dev., 807 F.2d 1433, 1438 (8th Cir. 1986) (“The

law of the case doctrine applies to issues implicitly

decided in earlier stages of the same case.”). Although

reviewing courts are not required to refrain from

revisiting their own decisions “if substantially dif-

ferent evidence is subsequently introduced or the

decision is clearly erroneous and works manifest

injustice,” the doctrine of law of the case “prevents

the relitigation of settled issues in a case, thus

protecting the settled expectations of parties, ensur-

ing uniformity of decisions, and promoting judicial

efficiency.” Little Earth, 807 F.2d at 1441; see also

Woods v. Kenan (In re Woods), 215 B.R. 623, 625

(B.A.P. 10th Cir. 1998) (where appellants in a bank-

ruptcy case, who had previously appealed to the

United States District Court, sought further review

from a different order of the same issues, the bank-

ruptcy appellate panel found “that the law of the case

doctrine should be applied to limit our review to

issues not previously decided by the District Court”);

App. 24

5 Am. Jur. 2d, Appellate Review § 566 (2008) (“issues

decided in earlier appellate stages of the same litiga-

tion should not be reopened, except by a higher court,

absent some significant change in circumstances,” so

long as “there was a hearing on the merits and that

there have been no material changes in the facts

since the prior appeal”).

The procedural history of the Raynors’ appeal

highlights the appellate choices afforded in bank-

ruptcy cases in the Eighth Circuit. Aggrieved parties

may appeal to either the district court or the bank-

ruptcy appellate panel. 28 U.S.C. § 158(a). A party

may not appeal a decision of the district court to the

bankruptcy appellate panel or vice versa. Rather,

after taking the intermediary appeal, the next court

of review is the court of appeals. While a party elect-

ing to appeal to the district court may appeal a later

bankruptcy court judgment to the bankruptcy appel-

late panel, we are not empowered to review decisions

of the district court. The statute of limitations issue

was fully examined by the district court, which ruled

that the trustee initiated his adversary proceeding

within the limitation period. We defer to the earlier

decision of the district court and decline to revisit the

issue of whether the trustee’s suit was time-barred.

The policy considerations raised by a bankruptcy

appellate panel’s review of an issue previously de-

cided in the same litigation by a district court are

comparable to the policy considerations that the Su-

preme Court addressed in dictum in its Christianson

decision. Christianson v. Colt Indus. Operating Corp.,

App. 25

486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed. 2d 811

(1988). In Christianson, the Court of Appeals for the

Federal Circuit and the Court of Appeals for the

Seventh Circuit had each disavowed jurisdiction over

a particular case and transferred the case to the

other. The Court reasoned that the law of the case

doctrine “applies as much to the decisions of a coordi-

nate court in the same case as to a court’s own deci-

sions.” Jd. at 816. The Court observed that although a

“court has the power to revisit prior decisions of its

own or of a coordinate court,” “as a rule courts should

be loathe to do so in the absence of extraordinary

circumstances such as where the initial decision was

‘clearly erroneous and would work a manifest injus-

tice.’” Id. at 817 (quoting Arizona v. California, 460

U.S. 605, 618 n. 8, 103 S. Ct. 1382, 75 L. Ed. 2d 318

(1983)). Not only would our review of an issue decided

by the district court upset the settled expectations of

parties and uniformity of decisions, but it would

hamper the judicial efficiency of the bankruptcy

appeals process.

The District Court’s Decision Is Not Clearly

Erroneous and Does Not Result in Manifest

Injustice.

The Raynors invoke the clearly erroneous and

manifest injustice exceptions to the law of the case

doctrine. Not only do we think the district court’s

decision is not clearly erroneous, we agree with the

result reached by the district court.

App. 26

There is really no need to resort to Rule 9006(a)

or to consider whether § 546(a) is jurisdictional.

Courts only look beyond the statute itself where the

terms of the statute are ambiguous. “When we find

the terms of a statute unambiguous, judicial inquiry

is complete... .” Rubin v. United States, 449 U.S. 424,

430, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981). Under 11

U.S.C. § 546(a), the specified avoidance actions “may

not be commenced after the earlier of the later of 2

years after the entry of the order for relief....” 11

U.S.C. § 546(a) (emphasis added). The language is

inelegant, but it is unambiguously inclusive of the

two-year anniversary of the entry of the order for

relief. The trustee’s complaint was timely so long as it

was filed before midnight on the anniversary date of

the entry of the order for relief. See Callahan v. Moore

(In re Gen. Creations, Inc.), 343 B.R. 548, 552 (Bankr.

W.D. Va. 2006) (where order for relief was entered on

July 22, 2003, “the statute of limitations set forth in

11 U.S.C. § 546(a)(1)(A) ended at midnight on July

22, 2005.”); In re Steck, 298 B.R. 244, 249 (Bankr. D.

N.J. 2003) (where the order for relief was entered on

October 10, 2000, “the trustee had to commence an

avoidance action no later than October 10, 2002”)

(emphasis added).

The statute clearly says that the last day to

commence this proceeding was “2 years after the

entry of the order for relief....” 11 U.S.C. 546(a)

(emphasis added). It seems clear to us that two years

after September 13, 2004 is September 13, 2006, not

September 12, 2006. If the Raynors’ interpretation

App. 27

were correct, one day after a day would be the same

day. Clearly this is both legally and grammatically

nonsensical.

Case Law Does Not Require a Different Re-

sult.

Finally, the Raynors argue that the district

court's determinations must be reconsidered in light

of 1) “New law stemming from the passage of the

BAPCPA, the Bright Line Rule, which is determina-

tive of this matter”; and 2) “Authority of the Eighth

Circuit Bankruptcy Appellant Panel, not previously

considered by this Court which is determinative of

this matter.” As to the first argument, this case was

filed before BAPCPA’s effective date, so any changes

made by that statute do not apply. Besides, BAPCPA

made no changes to the portion of § 546 at issue here.

Although “the law of the case does not apply when an

intervening decision from a superior tribunal clearly

demonstrates the law of the case is wrong,” the

Raynors cannot avail themselves of that exception.

Morris v. Am. Nat’l Can Corp., 988 F.2d 50, 52 (8th

Cir. 1993). First, none of the cases cited by the

Raynors were intervening. The decisions were all

issued prior to the district court order. Second, the

bankruptcy appellate panel is not superior to the

district court. Third, the cases cited by the Raynors

do not demonstrate that the district court’s conclu-

sions were wrong.

App. 28

The Graham County case required the Supreme

Court to reconcile two plausible constructions of a

statute of limitations, but there is only one plausible

construction of 11 U.S.C. § 546(a>. Graham County

Soil & Water Conservation Dist. v. United States, 545

U.S. 409, 419, 125 S.Ct. 2444, 162 L. Ed. 2d 390

(2005) (“where, as the case is here, there are two

plausible constructions of a statute of limitations, we

should adopt the construction that starts the time

limit running when the cause of action .. . accrues.”).

The district court’s conclusions are consistent with

Graham County. Even if the Graham County rule of

construction were applied to the time limitation in

§ 546(a), under the Raynors’ theory, it would not

change the outcome. Avoidance actions accrue when a

debtor commences a case by filing a bankruptcy

petition, which “constitutes an order for relief... .” 11

U.S.C. § 301(b). The avoidance actions therefore

accrue on the same day as the order for relief is

issued.

The Raynors also misread the Bay Area Laundry

case, and have extrapolated a universal ru’e and

urged its application in a manner that would be

inconsistent with the plain meaning of § 546(a). Bay

Area Laundry & Dry Cleaning Pension Trust Fund uv.

Ferbar Corp. of Cal., 522 U.S. 192, 118 S. Ct. 542, 139

L. Ed. 2d 553 (1997). In Bay Area Laundry, the Court

construed a statute of limitations to avoid the absurd

result that the limitations period might begin to run

before a cause of action had ever accrued. The Court

later wrote, “The question presented in Bay Area

App. 29

Laundry was whether a statute of limitations could

commence to run on one day while the right to sue

ripened on a later day. We answered that question,

and only that question, ‘no,’ unless the statute indi-

cates otherwise.” TRW Inc. v. Andrews, 534 U.S. 19,

34 n. 6, 122 S.Ct. 441, 151 L. Ed. 2d 339 (2001)

(emphasis added). The Bay Area Laundry holding is

consistent with the district court’s conclusions.

The Raynors’ reliance on the Fighth Circuit's

McCuskey decision is similarly misplaced. McCuskey

v. Cent. Trailer Servs., Ltd., 37 F.3d 1329 (8th Cir.

1994). Because the sole issue considered by the

McCuskey court was “whether the district court erred

in concluding that the two-year statute of limitations

started to run anew when [the chapter 7 trustee] was

appointed” following the conversion of the case from

chapter 11, the court’s holding is not instructive on

the issue raised in the Raynors’ appeal. /d. at 1330-

31.

The Raynors rely heavily on our opinion in Lee v.

Natl Home Centrs., Inc. (In re Bodenstein), 253 B.R.

46 (B.A.P. 8th Cir. 2000). In Bodenstein, the issue was

whether the statute of limitations under 11 U.S.C.

§ 546(a) was equitably tolled during the pendency of

the debtors’ chapter 13 case. Although the precise

expiration of the limitation period was not related to

the holding of that case, we stated, “The Debtors filed

their petition on November 21, 1996 and the order for

relief was entered that same day. In accordance with

Section 547(a)(1)(A), the period of two years after the

entry of the order for relief expired on November 21,

App. 30

1998.” /d. at 50. In that context, we understand the

term “expire” to mean that the avoidance action could

not have been brought later than November 21, 1998

CONCLUSION

We decline to revisit the issue of the timeliness of

the trustee’s complaint because that issue has al

ready been decided by the district court. The bank

ruptcy court’s March 9, 2009 order and judgment are

affirmed.

App. 3]

APPENDIX C

2007 WL 4180713

United States District Court, D. Nebraska

In re John P. RAYNOR, Debtor

Richard D. Myers, Trustee of the John P. Raynor

Chapter 7 Bankruptcy Estate, Appellee/Plaintiff,

Maureen Raynor, Appellant/Defendant

No. 8:07CV151.

No. BK04-83112.

Adv. No. A06-8105.

Nov. 21, 2007

Alan E. Pedersen, McGill, Gotsdiner Law IK irm.

Omaha, NE, for Appellee/Plaintiff

Elizabeth M. Callaghan, William L. Biggs, Jr, Gro

Welch Law Firm, Omaha, NE, for Appellant/Defendant

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge

This is an interlocutory appeal filed by the appellant/

defendant, Maureen Raynor, from orders that’ were

entered by the bankruptcy court denying her motion to

dismiss the Trustee’s adversary complaint and her

motion for rehearing. Ms. Raynor has elected to have

this appeal heard by the district court (filing 4). After

briefing on the issue of whether this court has jurisdic-

tion to entertain the appeal, and subsequent briefing on

the merits of this appeal, this matter 1s now ripe for

App. 32

disposition. (Filing 18, Order Granting Leave to

Appeal & Setting Briefing Schedule. )

BACKGROUND

On September 13, 2004, John PP. Raynor

(“Debtor”) filed a voluntary petition in the United

States Bankruptcy Court for the District of Nebraska,

seeking the entry of an order for relief under Chapter

1] of the United States Bankruptcy Code. (Filing 3-2,

Docket Sheet from U.S. Bankruptcy Court, District of

Nebraska, Case No. BKO4-83112.)An order of relief

was entered on September 15, 2004.’ On June 2, 2005,

the bankruptcy court issued an order converting the

case to a Chapter 7 procecding, and the Trustee was

appointed a day later. (/d.) On September 13, 2006

the second anniversary of the Debtor’s voluntary

petition filed in bankruptcy court — the Trustee filed

an adversary proceeding against Maureen Raynor,

the wife of the Debtor, the purpose of which was to

avoid alleged preferential transfers in violation. of

§ 547 of the Bankruptcy Code, other transfers pursu

ant to § 544 of the Code and the Nebraska Uniform

Fraudulent ‘Transfer Act, and unauthorized post

petition transfers. The Trustee’s adversary complaint

consisted of five causes of action four involving

alleged) pre-petition transfers, and one involving

’ “Ina voluntary bankruptcy case, the date that the petition

is filed is the date of the entry of an order for relief” 3 Bank

ruptcy Litigation § 16:49 (July 2007)

App. 33

alleged post-petition transfers. (Filing 155, US.

Bankruptcy Court, District of Nebraska, Case No.

BK04-83112; Filing 1, U.S. Bankruptcy Court, Dis-

trict of Nebraska, Case No. A06-8105.)

Maureen Raynor filed a motion to dismiss the

adversary proceeding as untimely pursuant to the

two-year statute of limitations, 11 U.S.C. § 546(a),

which p.ovides in relevant part:

(a) An action or proceeding under section

544, 545, 547, 548, or 553 of this title may

not be commenced after the earlier of —

(1) the later of —

(A) 2 years after the entry of the order for

relief;

Ms. Raynor argued that the limitations period

ran on September 12, 2006, and the adversary com-

plaint was filed one day later, September 13, 2006,

which was the second anniversary of the filing of

Debtor’s voluntary petition in bankruptcy court.

The bankruptcy court denied the motion to

dismiss, finding:

Based upon the statutory interpretation pro-

cedure identified as appropriate by the Eighth

Circuit Court of Appeals, and based upon the

expressed Congressional intent that 11 U.S.C.

App. 34

§ 546(aX1) is not jurisdictional, Rule 9006(a)y

is properly applied in the computation of

time that the Trustee must abide by when

bringing an avoidance action. In this case,

Rule 9006(a) would permit the Trustee to

begin the count on the day following the peti-

tion date and end the count on the anniver-

sary date of the petition filing. Following

that counting procedure, the Trustee’s filing

of the complaint on September 13, 2006, is

timely.

(Filing 15, U.S. Bankruptcy Court, District of Ne-

braska, Case No. AO6-8105, Memorandum on Motion

to Dismiss Adversary Proceeding at 4.) The bank-

ruptcy court denied Ms. Raynor’s motion to recon-

sider this ruling in a “text-only order.” Ud., Docket

Sheet, Filing 20.) This appeal followed.

* Rule 9006, in relevant part, provides:

In computing any penod of time prescribed or allowed

by these rules or by the Federal Rules of Civil Proce-

dure made applicable by these rules, by the local

rules, by order of court, or by any applicable statute,

the day of the act, event, or default from which the

designated period of time begins to run shall not be

included. The last day of the period so computed shall

be included, unless it is a Saturday, a Sunday, or a le-

gal holiday, or, when the act to be done is the filing of

a paper in court, a day on which weather or other

conditions have made the clerk’s office inaccessible, in

which event the period runs until the end of the next

day which is not one of the aforementioned days.

ld. (italics added).

App. 35

The parties agree that the question in this appeal

is “whether the ‘triggering event’ commences the

running of the two-year statute of limitations, or

whether the statute of limitations commences the day

after the day of the ‘triggering event’”. (Filing 13, at

2.)

kad

DISCUSSION

““When a bankruptcy court’s judgment is ap-

pealed to the district court, the district court acts as

an appellate court and reviews the bankruptcy court’s

legal determinations de novo and findings of fact for

clear error.”” In re Falcon Products, Inc., 497 F.3d

838, 840-41 (quoting In re Fairfield Pagosa, Inc., 97

F.3d 247, 252 (8th Cir.1996)). After a de novo review

of the bankruptcy court’s legal findings, I shall deny

Maureen Raynor's appeal from the bankruptcy court's

orders denying her motion to dismiss the Trustee's

adversary complaint and her motion for rehearing.

For the reasons thoroughly and clearly stated in

Judge Mahoney’s order denying Maureen Raynor's

motion to dismiss, I agree that “if the Eighth Circuit

Court of Appeals had before it the question of

whether Rule 9006(a) should be applied to 11 U.S.C.

§ 546(a), it would first determine whether § 546(a)

was jurisdictional or, alternatively, simply a statute of

limitations.’ If it determined the statute was not

As explained in Judge Mahoney's order, the Eighth Circuit

Court of Appeals has applied Fed.R.Civ.P. 6(a), a time-computation

(Continued on following page)

App. 36

jurisdictional, the counting would start per Rule

9006(a) on the day following the date the petition was

filed, and end on the anniversary date of the petition

filing,” thus making the Trustee’s adversary com-

plaint timely.

I find that, if confronted with the issue in this

appeal, the Eighth Circuit Court of Appeals would

align itself with the majority of courts that have

addressed the applicability of Rule 9006(a) to 11

U.S.C. § 546(a) and the legislative history behind

the 1994 amendments to § 546(a) to conclude that

§ 546(a) is not jurisdictional. See In re Pugh, 158 F.3d

530 (11th Cir.1998) (limitations period in 11 U.S.C.

§ 546(a) is waivable statute of limitations subject

to estoppel and equitable tolling, not jurisdictional

bar); In re General Creations, Inc., 343 B.R. 548

(Bankr. W.D.Va.2006) (Bankruptcy Rule 9006(a) gov-

erns computation of time to take action prescribed by

11 U.S.C. § 546); In re Art & Co., Inc., 179 B.R. 757

(Bankr.D.Mass.1995) (Rule 9006 applies to computation

of time in 11 U.S.C. § 546(a)); In re Southern Technical

College, Inc., 172 B.R. 253 (Bankr.E.D.Ark.1994) (ap-

plying Rule 9006(a) to two-year limitations period in 11

U.S.C. § 546; finding that date on which bankruptcy

statute similar to Bankruptcy Rule 9006(a), when a statute of

limitations was not jurisdictional because Fed.R.Civ.P. 82 preverts

the use of the Rules of Civil Procedure to extend the jurisdiction

of United States district courts. Moore v. United States, 173 F.3d

1131, 1134 (8th Cir.1999) (“before determining whether we

should apply Rule 6(a) to the one-year time limit in § 2255, we

must first determine whether that time limit is jurisdictional”).

App. 37

petition was filed was excluded from two-year period in

deciding whether avoidance proceeding was timely); Jn

re Sutera, 157 B.R. 519, 523 (Bankr.D.Conn.1993) (Rule

9006(a) is “applicable in full, and without exception, to

all provisions of the Bankruptcy Code, and ... Rule

9006(a) shall apply to Code § 546(a)”); In re Amdura

Corp., 142 B.R. 433, 435 (Bankr.D.Coile.1992) (“an

abundance of case law in other circuits” supports idea

that Rule 9006(a) applies to calculation of two-year

statute of limitations in 11 U.S.C. § 546(a); “Congress

did not say that [Bankruptcy Rule 9006(a)] was to

apply to statutes only if they were procedural or only

if they did not confer jurisdiction. The rule is not so

limited. The intent wes that the rule apply to all

applicable statutes. To find otherwise would require a

determination that Congress did not mean what it

said.”). See also H.R. Rep. 103-835, P.L. 103-394,

Bankruptcy Reform Act of 1994, res ai 1994 WL

562232, at *50-51, or 1994 U.S.C.C.A 3340, at

3358 (Oct. 4, 1994) (“Section- oe pene

Discussion of Section 217, “Limitation of Avoiding

Powers”) (“This section clarifies section 546(a)(1) of

the Bankruptcy Code.... The time limits are not

intended to be jurisdictional and can be extended by

stipulation between the necessary parties to the

action or proceeding.”); 2 Bankruptcy Desk Guide

§ 17:55 (Aug.2007), available at Westlaw Database

BDR. BDG § 17:55 (time limits in 11 U.S.C. § 546(a)

were not intended to be jurisdictional, cae a true

statute of limitations; “The Bankruptcy Rules provide

that in computing any period of time prescribed or

allowed by any applicable statute, the day of the act,

App. 38

event, or default from: which the designated period of

time begins to run is not included. ... This Rule has

been applied to the computation of the limitations

period in 11 U.S.C.A. § 546(a).”).

Because 11 U.S.C. § 546(a) is not jurisdictional,

the time-comrtitation rules of Bankruptcy Rule

9006(a) apply,’ and calculation of the limitations

period in 11 U.S.C. § 546(a) would begin on the day

following the date the petition was filed — September

14, 2004 ~ and end on the anniversary date of the

petition filing — September 13, 2006 — making the

Trustee’s September 13, 2006, filing of the adversary

proceeding against Maureen Raynor timely. Accord-

ingly, I shall deny Maureen Raynor’s appeal from the

bankruptcy court’s orders denying her motion to

dismiss the Trustee’s adversary complaint and her

motion for rehearing.

IT IS ORDERED:

1. The appeal filed by defendant/appellant

Maureen Raynor is denied;

2. The bankruptcy court’s orders denying

Maureen Raynor’s motion to dismiss (Filing 15, U.S.

Bankruptcy Court, District of Nebraska, Case No.

* One could convincingly argue that Rule 9006 applies —

regardless of how 11 U.S.C. § 546(a) is characterized — because

by its own terms, Rule 9006 applies to “any applicable statute.”

App. 39

A06-8105, Memorandum on Motion to Dismiss Adver-

sary Proceeding) and motion to reconsider (/d., Docket

Sheet, Filing 20) are affirmed;

3S. Judgment shall be entered by separate

oD Y

docu ment.

App. 40

APPENDIX D

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF NEBRASKA

IN THE MATTER OF: ) CASE NO. BKO4-83112

JOHN PATRICK RAYNOR, A06-8105

Debtor(s). iets Be

RICHARD D. MYERS,

Trustee of the John P.

Raynor Chapter 7 Bankruptcy, )

)

Plaintiff, )

v. )

MAUREEN RAYNOR, :

Defendant. )

MEMORANDUM

Hearing was held in Omaha, Nekraska, on De-

cember 21, 2006, regarding Filing No. 8, Motion to

Dismiss Adversary Proceeding, filed by Maureen

Raynor, and Filing No. 11, Resistance, filed by Rich-

ard D. Myers. Alan Pedersen appeared for Richard

D. Myers and Elizabeth Callaghan appeared for

Maureen Raynor. This memorandum contains find-

ings of fact and conclusions of law required by Fed-

eral Rule of Bankruptcy Procedure 7052 and Federal

Rule of Civil Procedure 52. This is a core proceeding

as defined by 28 U.S.C. § 157(b)(2)(F), (H) and (O).

On September 13, 2004, the Debtor filed a volun-

tary petition under Chapter 11 of the Bankruptcy

App. 41

Code. An order for relief was entered September 13,

2004. The Trustee was appointed on June 3. 2005, on

the date the case was converted to Chapter 7. The

Trustee filed this adversary proceeding against the

defendant, the purpose of which was to avoid alleged

preferential transfers in violation of §547 of the

Bankruptcy Code, to avoid certain other transfers

pursuant to § 544 of the Code and the Nebraska

Uniform Fraudulent Transfer Act, and to avoid un-

authorized post-petition transfers. The complaint was

filed on September 13, 2006.

The defendant has filed a motion to dismiss the

adversary proceeding as untimely, on the theory that

the applicable two-year statute of limitation accrued

on September 13, 2004, the day the alleged causes of

action accrued, that is, the petition date. The defen-

dant asserts that the statute of limitation, 11 U.S.C.

§ 546(a) ran on September 12, 2006. Since the adver-

sary complaint was filed one day after that date, on

September 13, 2006, the defendant suggests that this

court lacks jurisdiction and a dismissal with prejudice

is warranted.

The statutory provision relied upon by the

defendant is 11 U.S.C. § 546(a). It states:

(a) An action or proceeding under sec-

tion 544, 545, 547, 548, or 553 of this title

may not be commenced after the earlier of —

(1) the later of —

(A) 2 years after the entry of

the order for relief; or

App. 42

(B) 1 year after the appoint-

ment or election of the first

trustee under section 702, 1104,

1163, 1202, or 1302 of this title

if such appointment or such

election occurs before the ex-

piration of the period specified

in subparagraph (A); or

(2) the time the case is closed or

dismissed.

The Trustee resists the motion to dismiss because

it is his position that Federal Rule of Bankruptcy

Procedure 9006(a) makes the complaint timely. Rule

9006(a), in relevant part, states:

In computing any period of time pre-

scribed or allowed by these rules or by the

Federal Rules of Civil Procedure made appli-

cable by these rules, by the local rules, by or-

der of court, or by any applicable statute, the

day of the act, event, or default from which

the designated period of time begins to run

shall not be included. The last day of the pe-

riod so computed shall be included, unless it

is a Saturday, a Sunday, or a legal holiday, or,

when the act to be done is the filing of a pa-

per in court, a day on which weather or other

conditions have made the clerk’s office in-

accessible, in which event the period runs

until the end of the next day which is not one

of the aforementioned days.

Rule 9006(a) is basically the same as Federal

Rule of Civil Procedure 6(a). If Rule 9006(a) is appli-

cable to 11 U.S.C. § 546(a), the first date used for

App. 43

calculating the statutory time limit would be Sep-

tember 14, 2004, the day following the petition date.

The last date included in the two year limitations

period would be September 13, 2006, the anniversary

date of the petition filing. Bankruptcy courts, gener-

ally, have determined that Rule 9006(a) governs the

computation of time on a period of time to take action

as prescribed by an applicable statute, such as 11

U.S.C. § 546. See Grella v. Zimmerman (in re Art &

Co.), 179 B.R. 757, 762 (Bankr. D. Mass. 1995) (stat-

ing “the vast majority of courts has |sic] ruled that, in

light of the language of Fed. R. Bankr. P. 9006(a), the

date of the trustee’s appointment should not be

counted in computing the statute of limitations under

section 546(a)”); Callahan v. Moore (In re Gen. Crea-

tions, Inc.), 343 B.R. 548 (Bankr. W.D. Va. 2006); S.

Tech. Coll. v. Ark. Television Co. (In re S. Tech. Coll.,

Inc.), 172 B.R. 253 (Bankr. E.D. Ark. 1994); Boatman

v. Furnia (In re Sutera), 157 B.R. 519 (Bankr. D.

Conn. 1993); Amdura Corp. v. Faegre & Benson (In re

Amdura Corp.), 142 B.R. 433 (Bankr. D. Col. 1992);

Zimmerman v. Nat'l Elec. Benefit Fund (In re Kaelin

Assoc. Elec. Constr, Inc.), 70 B.R. 412 (Bankr. E.D.

Pa. 1987); Judson v. Intl Terminal Operating Co.

(In re Oro Import Co.), 69 B.R. 6 (S.D. Fla. 1986);

Salomon v. Pan Am. World Airways, Inc. (In re Black

& Geddes, Inc.), 35 B.R. 827 (Bankr. S.D.N.Y. 1983)

However, the Court of Appeals for the Sixth

Circuit, when faced with the specific question pre-

sented in this case, held that the two year time period

Aj»p. 44

begins to run as of the date of the Trustee’s appoint-

ment. It found that § 546(a) was “jurisdictional” and

that Rule 9006(a) could not be used to extend the ju-

risdictional grant provided by the statute. The Circuit

Court in Martin v. First Nat'l Bank of Louisville (In

re Butcher), 829 F.2d 596 (6th Cir. 1987), followed its

own earlier decision in Rust v. Quality Car Corral,

Inc., 614 F.2d 1118 (6th Cir. 1980), which dealt with

the application of Civil Rule 6(a). However, the re-

fusal of the Court to apply Rule 9006(a) and Civil

Rule 6(a) in Butcher and Rust was specifically over-

ruled by the Sixth Circuit sitting en banc in Bartlik v.

U.S. Department of Labor, 62 F.3d 163, 166 (6th Cir.

1995). In Bartlik, the Sixth Circuit determined that,

contrary to its prior decisions, it now conceptualizes

Civil Rule 6(a) as merely providing a method of

computing time, and not as expanding or extending a

statute of limitations.

The Sixth Circuit’s reexamination of the applica-

bility of Civil Rule 6fa) is significant because the

Eighth Circuit Court of Appeals relied upon Rust v.

Quality Car Corral, Inc., when it determined in

Mattson v. U.S. West Communications, Inc., 967 F.2d

259 (8th Cir. 1992), that under the Fair Debt Collec-

tion Practices Act, for a court to have jurisdiction, the

complaint must be filed on the day prior to the anni-

versary of the date of mailing, which, by analogy to

this adversary proceeding, would be the day before

the anniversary of the bankruptcy petition filing date.

Mattson, itself, was somewhat inconsistent with a

prior Eighth Circuit decision, McDuffee v. United

App. 45

States, 769 I. 2d 492, 494 (8th Cir. 1985). which cited

with approval other courts that had applied Civil

Rule 6(a) to federal statutes of limitations. More

recently, in Moore v. United States, 173 F.3d 1131 (8th

Cir. 1999), the Eighth Circuit Court of Appeals, when

interpreting the Anti-terrorism and Effective Death

Penalty Act’s (AEDP) one year time limit for filing

motions to set aside or vacate sentences, determined

that the AEDP is a statute of limitations, not a juni:

dictional bar, and therefore a= motion for post

conviction relief had to be filed no later than the

anniversary date of the effective date of the statute,

not one day prior to the anniversary date. The court

stated

We declined to apply Rule 6(a) in Mallson

because the statute of limitations in the

I DCPA was jurisdictional, and Fed. R. Civ. P

$2 prevents the use of the Rules of Civil Pro

cedure to extend the jurisdiction of district

courts. Thus, before determining whether we

hould apply Rule 6(a) to the one-year time

mit in § 2255, we must first determine

hether that time limit ts jurisdictional

173 F.3d at 1134. The court determined that the time

limit under that statute was not jurisdictional and

did apply Rule 6(a) to begin the computation of time

one day after the effective date of the enactment

the statute

Analogously, it would appear that if the Lighth

Circuit Court of Appeals had before it the question of

whether Rule G<O06(a) should he applied to 11 [

=.¢,

App. 46

§$ 546(a), it would first determine whether § 546(a)

was jurisdictional or, alternatively, simply a statute of

limitations. If it determined the statute was not juris

dictional, the counting would start per Rule 9006Ga) on

the day following the date the petition was filed, and

end on the anniversary date of the petition fling

Congress seems to have been more helpful with

regard to whether § 546(a) is jurisdictional than if

was with regard to other statutory provisions which

have been interpreted by the courts. Section 546(a)

was amended in 1994 by Public Law 108-394, the

Bankruptcy Reform Act of 1994. In the section-by

section analysis in the leyislative history, Section 216,

the applicable amendment to the limitation of avoid

ing powers, the House Report discussing the amend

ment states:

This section clarifies section 546(a)(1) of

the Bankruptcy Code which imposes a 2-year

statute of limitations within which an ap-

pointed trustee must bring an avoidance ac

lion. The purpose of a statute of limitations

is to define the period of time that a party is

at risk of suit. This section defines the appli

cable statute of limitations as 2 years from

the entry of an order of relief or 1 year after

the appointment of the first trustee if such

appointment occurs before the expiration of

the original 2-year period, The section is

not intended to affect the validity of any

tolling agreement or to have any bear-

ing on the equitable tolling doctrine

where there has been fraud determined

App. 47

to have occurred. The time limits are

not intended to be jurisdictional and

can be extended by stipulation between

the necessary parties to the action or

proceeding. (Emphasis added.)

Based upon the statutory interpretation proce-

dure identified as appropriate by the Eighth Circuit

Court of Appeals, and based upon the expressed

Congressional intent that 11 U.S.C. § 546(a)(1) is not

jurisdictional, Rule 9006(a) is properly applied in the

computation of time that the Trustee must abide by

when bringing an avoidance action. In this case, Rule

9006(a) would permit the Trustee to begin the count

on the day following the petition date and end the

count on the anniversary date of the petition filing.

Following that counting procedure, the Trustee's

filing of the complaint on September 13, 2006, is

timely. Therefore, the motion to disdismiss is denied.

A separate order will be entered.

DATED: January 26, 2007 BY THE COURT:

/s/ Timothy J. Mahoney

Chief Judge

Notice given by the Court to:

Alan Pedersen

*BRlizabeth > nila

« ov

SALsSOANJL VAAL 11s,

U.S. Trustee

achit

* Movant (*) is responsible for giving notice to other parties

if required by rule or statute.

App. 48

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 07-3919

In re: Maureen Raynor,

Petitioner

Appeal from the District of Nebraska —- Omaha

8:07-cv-00151-RGK)

JUDGMENT

AieAnw

ered by the court and is denied

January 04, 2008

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

s/ Michael E. Gans

App. 49

APPENDIX F

Maureen Raynor, Petitioner

Vv.

United States District Court

for the District of Nebraska.

No. 07-1197.

SUPREME COURT OF THE UNITED STATES

553 U.S. 1065; 128 S. Ct. 2528; 171 L. Ed. 2d 787;

2008 U.S. LEXIS 4441; 76 U.S.L.W. 3628

May 27, 2008, Decided

JUDGES: Roberts, Stevens, Scalia, Kennedy, Souter,

Thomas, Ginsburg, Breyer, Alito.

OPINION

Petition for writ of certiorari to the United States

Court of Appeals for the Eighth Circuit denied.

App. 50

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 09-2464

In re: John Patrick Raynor

Debtor

Richard D. Myers, Trustee of the

John P. Raynor Chapter 7 Bankruptc:

Appellee

Maureen Raynor and John Patrick Raynor

Appellants

Appeal from the Bankruptcy Appellate Panel

for the Eight Circuit

(09-6012)

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

October 20, 2010

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

s/ Michael E. Gans

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.