Cohen v. United States

539 F.2d 1231

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 1976
• Docket: No. 74-3123
• Status: Published

Opinions

OPINION

Before BROWNING, WALLACE and SNEED, Circuit Judges.

PER CURIAM:

Appellant Lee J. Cohen applied for compensation for services rendered as counsel for the debtor in possession in a Chapter XI proceeding. The referee in bankruptcy denied the application on the ground that no order had been entered appointing appellant as counsel in. accordance with Bankruptcy General Order 44.

Appellant then filed a motion for entry of an order appointing appellant as counsel to the debtor in possession nunc pro tunc, and for reopening of the hearing on appellant’s application for allowance of compensation. The referee found that the compensation sought by appellant was fair and reasonable, but denied the motion for an order of appointment nunc pro tunc on the sole ground that such an order was barred by Beecher v. Leavenworth State Bank, 184 F.2d 498 (9th Cir. 1950). The district court affirmed the referee’s denial of appellant’s motion for entry of a nunc pro tunc order of appointment.

Beecher does not bar entry of a nunc pro tunc order. Whether the requirement of General Order 44 may be met by a nunc pro tunc order in proper circumstances was not an issue in Beecher.

The record in this case discloses that the referee made the determinations required by General Order 44 before appellant performed the services for which he seeks compensation. A nunc pro tunc order of appointment is therefore not forbidden.

The order of the district court is reversed. The cause is remanded for consideration of whether there should be entered a nunc pro tunc order appointing appellant counsel for the debtor in possession. Since the district court did not review the referee’s finding that the compensation sought by appellant was fair and reasonable, we express no opinion on that question.

Reversed and remanded.