# Petition for Writ of Certiorari — Raynor v. United States (No. 07-1197)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

wo 071197mKR 1 7208
No.
nace OG OAE CLERK
3u The
Supreme Court of the Anited States
MAUREEN RAYNOR,

Petitioner,
Vv.

UNITED STATES DISTRICT COURT,
DISTRICT OF NEBRASKA,

Respondent.

SJ

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit

e

PETITION FOR A WRIT OF CERTIORARI

Sd

Submitting Counsel for Petitioner:

JOHN P. RAYNOR
RAYNOR, RENSCH & PFEIFFER
10110 Nicholas Street, Suite 102
Omaha, NE 68114
Telephone: (402) 498-4400

Petitioner’s Counsel before the Eighth Circuit:

FRANCIE C. RIEDMANN, ESQ.
GROSS & WELCH, P.C., L.L.O.
1500 Omaha Tower, 2120 South 72nd Street
Omaha, NE 68124
Telephone: (402) 392-1500

QUESTION PRESENTED

Whether the Eighth Circuit erred by not issuing
a mandamus to end the usurpation of judicial power
by two American courts that felt at liberty to disre-
gard this Court’s Rule of Law, the Default Rule (re-
quiring the application of the Standard Rule in
regard to limitation statutes), adopted in a series of
decisions cumulating in Graham County Soil & Water
Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409,
125 S.Ct. 2444, 2550-51 (2005), and to decide for
themselves, without reference to this Court’s antece-
dent principles.

il
PARTIES TO THE PROCEEDING

Petition sought the issuance of a writ of manda-
mus to review the decision of the Honorable Richard
G. Kopf, United States District Court Judge for the
District of Nebraska, sitting as an appellant court for
the United States Bankruptcy Court for the District
of Nebraska. Richard D. Myers, Trustee (“Trustee”) in

_the Chapter 7 bankruptcy proceeding of John P.

Raynor (“Debtor”), the Appellee in the District Court
proceeding did enter an appearance in the request for
Writ of Mandamus since the request was denied
without opinion on January 4, 2008.

DISCLOSURE STATEMENT

Counsel for the Petitioner is the husband of the
Petitioner and the Debtor in the bankruptcy case.

ili
TABLE OF CONTENTS
Page
QUESTION PRESENTED. ...................ccsecceceseeees i
PARTIES TO THE PROCEEDING ..................... ii
DISCLOSURE STATEMENT .....................ecceeceees il
TABLE OF AUTHORITIES ...................ccccseseeeeees Vv
ee MEE TE occ caarcvecscassccsecsescccacsesessoceeepanes 1
BI I ose sinciccscseveccoccscconccesvacevosnssececessen 1
ae Ae A TD cons vos cccciscccoseccovestecsadecave 1
STATEMENT OF THE CASE...................scccceseeees 2
PVG, Re pe 3
Ts: CURR TOW ooo isin os cncesshn edness 3
REASONS FOR GRANTING THE PETITION... 6
Be IS iano ov cseeews ec eirccactanass ipvsiccess 4
II. Maturation of this Principle of Law and a
I TRI ohio is di Sp vcs ind Rede ncdensvewecep rs 9
III. Miscellaneous Reasons...............0...c::secceees 11
CE II aoe oes sis cdacccscacivavevecscevsascnclecsvaahpacses 12
Appendix A
In re Maureen Raynor, No. 07-3919, C.A. 8,
I FI sn gsc dosiivan si Jekcagsesanvaccinoioransnines App. 1
Appendix B

In re Raynor, (No. 8:07CV151) 2007 WL
MEOOT ES. U3. PO FOF iiccaiiiniincicnciniccincicciine App. 2

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iv

TABLE OF CONTENTS - Continued

Page

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4

Appendix C

Richard D. Meyers v. Maureen Raynor, BK
Case: 04-83112, Adversary Case No. A06-
8105, U.S. Bankruptcy Court, Nebraska,
Decision and order of the Honorable Timothy
I isis io inkesnaisionas siupiasbaeiecenien ice ee

*

SEEM Che Be ee NN? one LN ORC G RA ERE R NGS NN ae ee DN er, an Pe ae

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TABLE OF AUTHORITIES
Page
CASES:
Bay Area Laundry and Dry Cleaning Pension

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

Bi Be ie PR IED Sov cvnpsccccrveccossoscessrsecessovecsees 9
Chase Securities Corporation v. Donaldson, 325

a. O08, GOB. CL. BAST CED4S) 3s... scccecessseseceees 11
Dodd v. U.S., 545 U.S. 353, 125 S. Ct. 2478

(2005), Justice Stevens’ dissenting opinion ........... 10
Graham County Soil & Water Conservation

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

Be isc ay sopneeeesavncenccsbes passim
Mattson v. U.S. West Communications, Inc.,

YE fe 1S Se . -5 Rn 2
Moore v. U.S., 173 F.3d 1131 (8th Cir. 1999) ............... 2
Reiter v. Cooper, 507 U.S. 258, 113 S. Ct. 1213

a aaa Ly ieee des auivcsebeesccehecdocoresceeeses 9

TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.
441, 151 L.Ed.2d 339 (2001) — the Majority’s
a rn alc diasinoveneenivens 9

TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.
441, 151 L.Ed.2d 339 (2001) -— Justice

Scalia’s Concurring opinion in judgment............... 10
Union Nati Bank of Wichita Kan. v. Lamb, 337
U.S. 38, 69S. Ct. 911, 93 L.Ed. 1190 (1949)............ 2

Union Pacific R. Co. v. Beckham, 138 F.3d 325
RRS IESE RESIN 3, ADSI Creer Seite SP ale ene 11

vi

TABLE OF AUTHORITIES — Continued

Page
U.S. CONSTITUTION:
CORSE, MPEICIS VE. CLAUBC 2 ....0......0...ccccccsesccccccccsscocsceones 6
MN sini, cape casevacnouavedadanibsossiabessdousas 9
Const. Amend. XIV, The Equal Protection
OP SER EAE SAPNA Ne Me AU AER OE SON SC 8,9, 10
STATUTES & RULEs:
Be re i cick cisicntsvcvescndncivnsccocapedebacasevnss 1,4
BO roe sce sonnesoicesvoecvascoucsecns subsdonuaddouss 6
Fed. R. Bankr. Proc. 9006(a) ................. cece eeeceeeceecees 3, 7
RE! SE FO OD ccocc covnsieesccnesscccasocsesusctuseccoceecsi a §

OTHER AUTHORITY:

1 Bankruptcy Practice Handbook § 6:30 (2d
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the merits of this appeal, this matter is now ripe for

App. 3

disposition. (Filing 13, Order Granting Leave to Ap-
peal & Setting Briefing Schedule.)

BACKGROUND

On September 13, 2004, John P. 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
11 of the United States Bankruptcy Code. (Filing 3-2,
Docket Sheet from U.S. Bankruptcy Court, District of
Nebraska, Case No. BK04-83112.)An order of relief
was entered on September 13, 2004.'On June 2, 2005,
the bankruptcy court issued an order converting the
case to a Chapter 7 proceeding, and the Trustee was
appointed a day later. (Jd.) 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

' “In a 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. 4

alleged post-petition transfers. (Filing 155, U.S.
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 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 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. 5

$ 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 be-
gin the count on the day following the peti-
tion date and end the count on the
anniversary date of the petition filing. Fol-
lowing 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. A06-8105, 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.” (/d., Docket
Sheet, Filing 20.) This appeal followed.

* Rule 9006, in relevant part, provides:

In computing any period 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.

Id. (italics added).

App. 6

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.)

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 Maurcen 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. 7

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)
governs 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 prevents
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. 8

petition was filed was excluded from two-year period in
deciding whether avoidance proceeding was timely); In
re Sutera, 157 B.R. 519, 523 (Dankr.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.Colo.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 was 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, available at 1994 WL
562232, at *50-51, or 1994 U.S.C.C.A.N. 3340, at
3358 (Oct. 4, 1994) (“Section-by-Section Analysis’;
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, but 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. 9

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-computation 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 Mau-
reen 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. 10

A06-8105, Memorandum on Motion to Dismiss Adver-
sary Proceeding) and motion to reconsider (Jd.,
Docket Sheet, Filing 20) are affirmed;

3. Judgment shall be entered by separate
document.

App. 11

APPENDIX C

IN THE UNITED STATES BANKRUPTCY COURT

: FOR THE DISTRICT OF NEBRASKA

j IN THE MATTER OF: ) CASE NO. BK04-83112

JOHN PATRICK RAYNOR, ) A06-8105
Debtor(s). ) CH. 7

RICHARD D. MYERS,
Trustee of the John P.

)
)
)
Raynor Chapier 7 Bankruptcy,
Plaintiff, )

v. )
MAUREEN RAYNOR,
Defendant. )

ORDER

Hearing was held in Omaha, Nebraska 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 Mau-
reen Raynor.

In accordance with the Memorandum filed con-
temporaneously herewith,

IT IS ORDERED: The motion to dismiss the
adversary proceeding (Fil. #8) is denied.

DATED: January 26, 2007

App. 12

BY THE COURT:

/s/ Timothy J. Mahoney
Chief Judge

Notice given by the Court to:
Alan Pedersen
*Elizabeth Callaghan
U.S. Trustee

* Movant (*) is responsible for giving notice to other parties
if required by rule or statute.

App. 13

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEBRASKA

IN THE MATTER OF: ) CASE NO. BK04-83112
JOHN PATRICK RAYNOR, ) A06-8105

Debtor(s). ) CH. 7

RICHARD D. MYERS,
Trustee of the John P.
Raynor Chapter 7 Bankruptcy,

)

)

)

)

ee )
Plaintiff, )

v. )
)

)

)

MAUREEN RAYNOR,
Defendant.

MEMORANDUM

Hearing was held in Omaha, Nebraska, on
December 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 Mau-
reen Raynor. This memorandum contains findings of
fact and conclusions of law required by Federal 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
Code. An order for relief was entered September 13,

App. 14

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 unau-
thorized 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 defen-
dant is 11 U.S.C. § 546(a). It states:

(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

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App. 15

(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.

The Trustee resists the motion to dismiss because
it is his position that Federal Rule of Bankruptcy
Procedure 9006(a) makes the compiaint 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 inac-
cessible, 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

RO TLE Bae IRE TE INET ER a POF SLT TRS ee Po PRE Fae PETE Sa Wie Por PRS Sar ee tye te” Sine dae EET NRO SREN Ze nce aN

App. 16

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); Salo-
mon 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

App. 17

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
jurisdictional grant provided by the statute. The
Circuit Court in Martin v. First Natl Bank of Louis-
ville (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 refusal of the Court to apply Rule 9006(a) and
Civil Rule 6(a) in Butcher and Rust was specifically
overruled 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 deter-
mined 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 6(a) 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. 18

States, 769 F.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 juris-
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 Mattson
because the statute of limitations in the
FDCPA was jurisdictional, and Fed. R. Civ. P.
82 prevents the use of the Rules of Civil Pro-
cedure to extend the jurisdiction of district
courts. Thus, 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.

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 of
the statute.

Analogously, it would appear that if the Bighth
Circuit Court of 4.;peals had before it the question of
whether Rule 9006(a) should be applied to 11 U.S.C.

Ce LANE ee er E eT PD ee WER me Lee Me tee ee eRe eT, DO he eR et ge ye Ne ee ee We ae eee Ne eee

App. 19

§ 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 9006(a) on
the day following the date the petition was filed, and
end on the anniversary date of the petition filing.

Congress seems to have been more helpful with
regard to whether § 546(a) is jurisdictional than it
was with regard to other statutory provisions which
have been interpreted by the courts. Section 546(a)
was amended in 1994 by Public Law 103-394, the
Bankruptcy Reform Act of 1994. In the section-by-
section analysis in the legislative 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-
tion. 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

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App. 20

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
*Elizabeth Callaghan
U.S. Trustee

* Movant (*) is responsible for giving notice to other parties
if required by rule or statute.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1272%3A1. Public record. Not legal advice.