Watman v. Groman (Watman)

304 B.R. 553, 52 Collier Bankr. Cas. 2d 130, 2004 Bankr. LEXIS 503
CourtBankruptcy Appellate Panel of the First Circuit
DecidedFebruary 2, 2004
DocketBAP No. MW 02-079; Bankruptcy No. 99-41823-JBR; Adversary No. 99-4240-JBR
StatusPublished
Cited by1 cases

This text of 304 B.R. 553 (Watman v. Groman (Watman)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watman v. Groman (Watman), 304 B.R. 553, 52 Collier Bankr. Cas. 2d 130, 2004 Bankr. LEXIS 503 (bap1 2004).

Opinion

LAMOUTTE, Bankruptcy Judge.

Subsequent to this Panel’s decision of December 29, 2003, reversing the bankruptcy court and remanding the case for further proceedings consistent with the mandate of the court of appeals, the appel-lee, Lawrence Groman, filed a motion to amend the panel’s judgment to certify questions for appeal pursuant to 28 U.S.C. § 1292(b). In the decision that was on review before the panel, the bankruptcy court granted Groman’s objection to Wat-man’s discharge under 11 U.S.C. § 727(a)(7), but denied the objection to discharge under § 727(a)(2).

Groman asks the panel to certify three questions to the court of appeals, aimed at clarifying what the court of appeals’ mandate required of the bankruptcy court on remand:

1.Whether the court of appeals’ mandate required the bankruptcy court to specifically identify each transferred asset and quantify the going concern value;
2. Whether the court of appeals’ mandate required the bankruptcy court to make specific findings concerning the property available to the trustee for liquidation; and
3. Whether the court of appeals’ mandate required the bankruptcy court to issue detailed, written findings on each of the indicia of fraudulent intent.

Watman filed an objection to the motion to amend judgment. He argues that a bankruptcy appellate panel does not have authority to certify questions to the court of appeals pursuant to § 1292(b) for the purpose of interlocutory appeal; rather, only a district court may do so. He further argues that even if the Panel could certify the question to the court of appeals, it should not do so in this case.

For the reasons set forth below, the Panel denies Groman’s request to amend its judgment to certify questions to the First Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b).

Discussion

The issues of whether a decision by a district court or a bankruptcy appellate panel, which reverses and remands back to the lower court, is interlocutory or final, as well as the availability of appellate review of such a decision, have been the topic of much discussion and controversy among the circuit courts of appeals. These issues arise because of the structure of the bankruptcy appellate system, which provides for appeals from the bankruptcy court to the district court or the bankruptcy appellate panel, and then provides for further appeal from those courts to the circuit courts of appeal.

Finality of a Bankruptcy Appellate Panel Decision

Under 28 U.S.C. § 158(d), a circuit court of appeals may only review a final order of [556]*556a district court or a bankruptcy appellate panel. That section provides that “[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section.” Subsection (a) provides that district courts may hear appeals from final judgments and interlocutory orders and decrees (with leave of the court), while subsection (b) provides for the creation of bankruptcy appellate panels, which may hear appeals allowed under subsection (a).

In non-bankruptcy proceedings, 28 U.S.C. § 1291 gives the circuit courts of appeal jurisdiction over all final decisions of the district courts. The policies underlying this requirement include (1) emphasizing the trial judge’s role as the initial decider of law and fact, (2) conservation of judicial resources, (3) determining issues on appeal on a full, rather than partial, record, (4) avoiding the loss of evidence, (5) preserving the court’s and counsel’s familiarity with the case, and (6) preventing parties with substantial resources from harassing an opponent. Mitzel, “When is an Order Final? A Result-Oriented Approach to the Finality Requirement for Bankruptcy Appeals to Federal Circuit Court”, 74 Minn. L.Rev. 1337, 1341 (June, 1990). Although a final order is traditionally defined as one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, Congress and the courts have developed pragmatic exceptions to the finality requirements. Id. Statutory exceptions are found in 28 U.S.C. § 1292(a) and Fed.R.Civ.P. 54(b); examples of judicially created exceptions include Forgay v. Conrad, 47 U.S. 201, 6 How. 201, 12 L.Ed. 404 (1848) [The “Forgay doctrine” allows immediate appeal when the substantive issues have been determined and delay would render the appeal of little value.]; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) [The collateral order rule, which allows appeal if the ruling conclusively determines a disputed questions, resolves an important issue that is completely severable from the action, and is effectively unreviewable on appeal from the final judgment.]; and Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), [Courts should give the general finality requirement of § 1291 a practical, rather than a technical construction.] Id. at 1342.

The Bankruptcy Reform Act of 1978 overhauled the entire appellate process for bankruptcy cases. The very broad grant of jurisdiction found in the Bankruptcy Act was replaced with 28 U.S.C. § 1293(b), which narrowed the jurisdiction of federal courts of appeal to “a final judgment, order, or decree” in bankruptcy. The circuits split on whether to interpret the finality requirement for bankruptcy appeals in the same manner in which they interpret the finality requirement of non-bankruptcy appeals. In 1984, Congress responded to judicial criticism and replaced § 1293 with § 158. Due to the similarity of their language, circuit courts of appeal routinely look to decisions interpreting § 1293(b) as a guide in construing the finality requirement of § 158(d). Mitzel, 74 Minn. L.Rev. at 1346-47. See also, In re Saco Local Development Corp., 711 F.2d 441 (1st Cir.1983), for a detailed discussion of the history of appellate bankruptcy jurisdiction.

When a bankruptcy court issues a final order that the district court or bankruptcy appellate panel reverses and remands for further proceedings, the circuit courts of appeal disagree about whether the § 158(d) finality requirement should be measured by the final order of the bank[557]*557ruptcy court or by the district court or BAP’s reversal and remand.

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Bluebook (online)
304 B.R. 553, 52 Collier Bankr. Cas. 2d 130, 2004 Bankr. LEXIS 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watman-v-groman-watman-bap1-2004.