Robert Carey V.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2012
• Docket: 11-60021
• Status: Unpublished

Opinion

FILED CORRECTED JANUARY 23, 2013 + NOV 21 2012

MOLLY C. DWYER, CLERK NOT FOR PUBLICATION U .S. C O U R T OF APPE ALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ROBERT J. CAREY, No. 11-60021

Debtor, BAP No. 10-1309

ROBERT J. CAREY, MEMORANDUM *

Appellant,

v.

CHARLIE Y. INC.,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Hollowell, and Dunn, Bankruptcy Judges, Presiding

Argued and Submitted November 8, 2012 San Francisco, California

Before: FARRIS, FERNANDEZ, and BYBEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appellant Robert J. Carey appeals from the Bankruptcy Appellate Panel’s

decision vacating the bankruptcy court’s dismissal of appellee Charlie Y.’s fee

motion and remanding for a determination of the appropriate amount of attorneys’

fees. We dismiss the appeal for lack of jurisdiction because the BAP’s decision

was not sufficiently final.

This court has jurisdiction over appeals from “all final decisions, judgments,

orders, and decrees” entered by the BAP. 28 U.S.C. § 158(d)(1). We have

concluded that “final” for bankruptcy purposes under § 158(d)(1) may be

interpreted more flexibly than “final” under 28 U.S.C. § 1291. See Klestadt &

Winters, LLP v. Cangelosi, 672 F.3d 809, 813 (9th Cir. 2012). Thus, we generally

apply the Vylene factors to determine finality,1 which consider: “(1) the need to

avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in

preserving the bankruptcy court’s role as the finder of fact; and (4) whether

delaying review would cause either party irreparable harm.” Lakeshore, 81 F.3d

1 Some of our decisions have suggested that Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992), may have undermined Vylene by implying that the standard for finality in § 158(d)(1) is the same standard as 28 U.S.C. § 1291. See, e.g., Bender, 586 F.3d 1159, 1163 (9th Cir. 2009); Lakeshore Vill. Resort, Ltd., 81 F.3d 103, 105–06 (9th Cir. 1996). Since we conclude that the BAP’s decision was not final even under the more flexible Vylene test, we need not consider whether Germain undermines Vylene. See Bender, 586 F.3d at 1163–64; Lakeshore, 81 F.3d at 105–06.

2 103 at 106 (citing In re Vylene Enters., Inc., 968 F.2d 887, 895–96 (9th Cir.

1992)). We lack jurisdiction under these factors.

First, a remand to the BAP to determine the appropriate amount of attorneys’

fees is not “a purely mechanical or computational task,” but rather is likely “to

generate a new appeal or to affect the issue . . . on appeal.” Bender, 586 F.3d at

1165 (internal quotation marks omitted). Calculating attorneys’ fees will require

the bankruptcy court to consider numerous legal issues, many of which Carey has

already raised on remand. As a consequence, we may also need to “review the

same issue[] in th[is] same case a second time.” Lakeshore, 81 F.3d at 107. One of

the main issues before this court is whether Charlie Y.’s+ “general claim” for

attorneys’ fees was pled properly. On remand, the bankruptcy court will also need

to consider whether fees generated on appeal and from related state court litigation

were also pled properly since this was not considered below. Indeed, the BAP

suggested that the question of whether these additional fees were pled properly was

an argument that could be “renewed on remand.”

Second, declining to hear the case now will promote judicial efficiency.

Given the possibility of piecemeal litigation, including the likelihood that similar

issues would again be presented to this court, the most efficient course of conduct

would be to consider whether all the fees were pled properly in a single decision.

3 Carey’s argument that the litigation would end now if we were to reverse the BAP

is unavailing. See Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir. 1997).

Third, declining to hear the case now would not violate the bankruptcy

court’s role as primary finder of fact. Indeed, if we were to instead hear all the

pleading issues now—including whether the fees from the related state court

proceeding were properly pled—in order to avoid deciding the same issue twice,

we would invade the bankruptcy court’s role as finder of fact since it has not yet

considered that question and thus has not had an opportunity to develop the record.

See Lakeshore, 81 F.3d at 107; In re Saxman, 325 F.3d 1168, 1172 (9th Cir. 2003).

Finally, declining to hear the case will not cause irreparable harm. Carey

argues he will suffer financial hardship if we dismiss because he will have to pay

for costly litigation on an additional appeal. Given the possibility of piecemeal

appeals, however, this may happen regardless. Moreover, litigation costs generally

do not qualify as irreparable harm. See F.T.C. v. Standard Oil Co., 449 U.S. 232,

244 (1980); In re Excel Innovations, Inc., 502 F.3d 1086, 1099 (9th Cir. 2007).

In sum, the Vylene factors indicate that the BAP’s decision lacks finality.

Thus, we lack jurisdiction to hear the appeal. We express no view on the merits of

the BAP’s decision.

DISMISSED.