Opinion of the Court
2
Transform’s second major salvo fares no better. It points to former Federal Rule of Bankruptcy Procedure 805, which was promulgated in 1976,[1] and characterizes that Rule as “ ‘declaratory of ’ ” a historic practice in which some appellate courts dismissed appeals “challenging the validity of a consummated sale … without considering the merits,” which Transform equates with jurisdictional treatment. Brief for Respondent 43–44. Transform vigorously maintains that Congress fully transplanted Rule 805 into §363(m), and that §363(m) therefore imbibed the jurisdictional character that Rule 805 incorporated from the historic practice.
This argument relies on a supposed pre-1976 lower court jurisdictional consensus that Rule 805 formalized and Congress then built into §363(m). But Transform trips over the first hurdle: Rule 805’s supposedly jurisdictional character. We rejected this sort of use of old lower court cases in Boechler, because “almost all” of those lower court cases “predate[d] this Court’s effort to ‘bring some discipline’ to the use of the term ‘jurisdictional.’ ” 596 U. S., at ___–___ (slip op., at 7–8). The facts here are even worse for Transform: Every case it cites to prove that Rule 805 was jurisdictional predates §363(m)’s initial 1978 enactment, and thus long predates our modern efforts on jurisdictional nomenclature. If numerous recent lower court opinions (some as recent as 2005) treating the provision at issue as jurisdictional were not enough in Reed Elsevier, 559 U. S., at 160, n. 2, 169, Transform’s weaker proffer will not do.
- ↑ The Rule provided: “Unless an order approving a sale of property or issuance of a certificate of indebtedness is stayed pending appeal, the sale to a good faith purchaser or the issuance of a certificate to a good faith holder shall not be affected by the reversal or modification of such order on appeal, whether or not the purchaser or holder knows of the pendency of the appeal.” Fed. Rule Bkrtcy. Proc. 805 (1976).
