State Bar of California v. Albert

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2025
• Docket: 24-3523
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: Lenore L. Albert No. 24-3305 Debtor D.C. No. ____________________ 23-1024

LENORE L. ALBERT, MEMORANDUM*

Appellant.

v.

STATE BAR OF CALIFORNIA; MARICRUZ FARFAN; BRANDON TADY; PAUL BERNARDINO; YVETTE ROLAND; ALEX HACKERT,

Appellees.

In re: Ms. LENORE L. ALBERT, Attorney No. 24-3523 Debtor D.C. No. ___________________________________ 23-1024

STATE BAR OF CALIFORNIA,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

Ms. LENORE L. ALBERT, Attorney,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gary A. Spraker, Robert J. Faris, and William J. Lafferty, III, Bankruptcy Judges, Presiding

Submitted May 19, 2025** Pasadena, California

Before: WARDLAW and JOHNSTONE, Circuit Judges, and RASH, District Judge.***

Lenore Albert, a debtor in the underlying bankruptcy case, appeals from a

decision of the Bankruptcy Appellate Panel (“BAP”) affirming in part and

reversing in part the bankruptcy court’s orders in her adversary proceeding and

remanding for further proceedings on claims previously dismissed. The State Bar

of California cross-appeals. Because we lack jurisdiction over nonfinal BAP

decisions, we dismiss both appeals for lack of jurisdiction. See 28 U.S.C. § 158(d);

see also In re Bunyan, 354 F.3d 1149, 1152 (9th Cir. 2004) (recognizing that “[a]

federal court always has jurisdiction to determine its own jurisdiction”).

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Scott H. Rash, United States District Judge for the District of Arizona, sitting by designation.

2 24-3305 Because the proceedings on remand here could generate a new appeal and

will require more than ministerial tasks from the bankruptcy court, we conclude

that the BAP’s remand was not a final order under our pragmatic approach.

Under the pragmatic approach to finality in bankruptcy cases, when a party

appeals a BAP ruling remanding the case for further proceedings in the bankruptcy

court, four factors guide our jurisdictional analysis: “(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.” In re Gugliuzza, 852 F.3d 884, 894

(9th Cir. 2017) (citation omitted). When analyzing these factors, we blind

ourselves to the merits of the appeal. See In re Landmark Fence Co., 801 F.3d

1099, 1103 (9th Cir. 2015).

By way of example, we lack jurisdiction to review a BAP’s decision

remanding “for discovery to allow factual determinations [on a central issue]”

because the decision is not final. Gugliuzza, 852 F.3d at 895 (alteration in original)

(quoting In re Vill. at Lakeridge, LLC, 814 F.3d 993, 998 n.7 (9th Cir. 2016)).

However, we may assume jurisdiction of an appeal in situations where the BAP’s

“remand order is limited to ‘purely mechanical or computational task[s] such that

the proceedings on remand are highly unlikely to generate a new appeal.’” Id.

(alteration in original) (quoting Landmark Fence, 801 F.3d at 1103).

3 24-3305 First, this remand carries a risk of piecemeal litigation. The BAP ruling

implicitly requires the bankruptcy court to determine on remand various other

substantive, central issues, such as the merits of the state constitutional claim,

claim preclusion, and application of the Rooker-Feldman doctrine. We cannot

predict what path the bankruptcy court will chart on remand, and, as such, we

conclude its tasks are far from “purely mechanical or computational.” Gugliuzza,

852 F.3d at 895 (citation omitted).

Second, increased judicial efficiency is not guaranteed by accepting

jurisdiction now because at least one of the outcomes on appeal will result in

further rulings from the bankruptcy court which may themselves be appealed.

While the State Bar raises general concerns about efficiency, we find it could have

circumvented any such inefficiencies resulting from dismissal for lack of

jurisdiction by seeking certification from the BAP to allow this court to review an

interlocutory order. See 28 U.S.C. § 158(d)(2). Moreover, the State Bar’s argument

regarding the purely legal nature of the issues on appeal is unavailing because the

same argument was explicitly rejected in Gugliuzza. 852 F.3d at 898; see Miller v.

Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (explaining a three-

judge panel is bound by prior panel opinions).

Third, because the “BAP’s decision expressly left open the possibility for

the bankruptcy court to engage in additional fact-finding after remand,” In re

4 24-3305 Marino, 949 F.3d 483, 487 (9th Cir. 2020), dismissal here preserves the

bankruptcy court’s fact-finding role.

Fourth, and finally, delaying review would not cause either party irreparable

harm because the only harms are potential time spent on further proceedings and

costs incurred during the proceedings, neither of which are irreparable. See In re

Excel Innovations, Inc., 502 F.3d 1086, 1099 (9th Cir. 2007).

DISMISSED FOR LACK OF JURISDICTION. Appellant Albert’s

Motion for Initial Hearing En Banc (Doc. 25) is DENIED.

5 24-3305