Jurisdiction: Appellate Process
| ID | Name | Group | Other | Code
Sec |
Cross
Ref | Problem
Referenced | Proposed
Solutions |
NBRC-
0007 | Leon S. Foreman | Scholar-in-Residence
- American College of Bankruptcy - Selective Professional Association of
7, 13 & 11 Attys; Accts; Professors; Judges * Gov't Officials
(Approx. 300 Fellows). |
| 28 U.S.C. §
158 |
| Two
levels of appeals of bankruptcy court orders is time consuming, costly
and creates huge stare decisis problems. | Direct Appeals to Circuit Court. Appealability of material
orders should be as of right, although currently treated as
interlocutory. |
NBRC-
0011 | Hon. Leif M. Clark | Judiciary; United
States Bankruptcy Court for the Western District of
Texas |
| 28
U.S.C. § 157(d) |
| It is common in some districts
for the district judge to "refer" bankruptcy appeals to a
"magistrate" judge. The net result of this practice is that
the decision of one non-Article III court is being reviewed by another
non-Article III court, defeating the clear intentions of Congress in the
1984 amendments to assure Article III review of bankruptcy court final
orders adjudicating arguably private rights disputes, changes which were
made in direct response to Marathon. Such appeals could be
unconstitutional. | Minor clarifying
amendments to 28 U.S.C. § 157(d) and 28 U.S.C. § 636 would
easily remedy the problem. |
NBRC-
0027 | American Bankruptcy Institute Statement Before
NBRC | Nation's largest multi-disciplinary
organization devted to researcg and education issues related to
insolvency. | Oral Testimony
on June 20, 1996 | 28 U.S.C.
158 |
| Whether
the current appellate structure works | The
current bankruptcy appellate structure is not only time consuming and
expensive, but because the appeal is conducted by another trial judge,
the appeal lacks precedential value. The historical background behind
the present appellate structure to the U.S. District Court is largely
based on outdated reasons that were valid only during the period of the
Bankruptcy Act. |
NBRC-
0138 | Philip B. Schwartz | The Business Law
Section of the Florida Bar |
| 158 |
| The appellate process is too
slow. | The Commission should consider whether
to amend 28 U.S. § 158 to speed the appeal process by either (i)
mandating that each of the Appellate Circuits establish a BAP; or (ii)
eliminating appeals to the District Court and allowing direct appeals to
the Circuit Court |
NBRC-
0178 | Gary White, on behalf of the Natl. Assoc. of Credit
Management | Chair, Government Affairs Comm.,
Natl. Assoc. of Credit Management |
|
|
| Working group's proposal
regarding interlocutory appeals could create unneccessary delays in
court administration. | NACM opposes the
working group's proposal on interlocutory appeals. |
NBRC-
0217 | Geraldine Mund | Bankruptcy Judge (C.D.
Cal.) |
|
|
| The author comments on the need for certainty in appellate law:
1. Participants in bankruptcy cases, who are among those least able to
afford extensive appellate review, are burdened with an additional level
of appellate review not required of other cases in the federal system.
Thus, even though there is an appeal "of right" to the Circuit
Court of Appeals, it is seldom taken because of the financial burden on
the parties, leading to great uncertainty of the law.
2. As the district court sitting as an appellate court does not bind
itself to its own decisions, trial courts have absolutely no certainty
with respect to the law of the district or circuit. The first level of
appeal needs to be binding on all trial level courts in that circuit.
The author cites to her opinion in In re Barakat, 173 B.R. 672 (Bankr.
C.D. CA, 1994), in which she holds that Bankruptcy Appellate Panel
decisions are binding on all bankruptcy courts in a circuit, but not on
district courts as trial courts (athough they should be persasive)
within the same circuit, or the district courts as appellate courts.
3. As a result of this uncertainty, bankruptcy courts are creating law
through voluminous dialogue of opinions, none of which are binding.
This process is inefficient. Moreover, the constitution requires that
there be uniform laws of bankruptcy on a nation-wide
basis. | Bankruptcy court process should be
reformed to provide that the first level of appeal is binding on all
trial level courts in that circuit. |
NBRC-
0300 | Geraldine Mund | Bankruptcy Judge (C.D.
Cal.) | Copy of opinions
from In re Barakat |
|
| While the author agrees that
there should be a direct appeal from the Bankruptcy Court to the
Circuit, she notes that if the Bankruptcy Appellate Panels are to be
retained, it is critical that the law clairfy who is bound by their
rulings. Such a law would be the only way to determine this issue as
there is no way to force the circuits to rule on this matter. By way of
example, she encloses three of her opinions on the case of In re
Barakat. 173 B.R. 672 (Bkrtcy. C.D. Cal. 1994). | NBRC should create legislation that defines who is bound by
rulings of the Bankruptcy Appellate Panels. |
NBRC-
0301 | National Bankruptcy Conference | National Bankruptcy Conference (NBC), Bernard Shapiro -
Chair |
|
|
| National Bankruptcy Conference believes that the following issue
merits study by the NBRC: whether bankruptcy appeals should be made
directly to the Court of Appeals. The current two-step appellate
process is a waste of judicial resources and needlessly delays the
resolution of bankruptcy cases. | Bankruptcy
system should be restructured so that appeals are made directly to the
Court of Appeals. |
NBRC-
0303 | Commercial Law League of America | Commercial Law League of America (CLLA) |
|
|
| The Commerical Law League of
America believes that the following issues should be considered by the
NBRC: (1) whether the current appellate system should be changed to
eliminate the district court review; (2) whether Congress should
eliminate provisions which require withdrawl of the district court's
reference to the bankruptcy court. | The CLLA
believes that the first issue should receive top priority, and the
second should receive moderate priority. While the second issue is
interesting, it is probably not worth the investment of the NBRC's
limited resources. |
NBRC-
0304 | Arthur J. Spector | Bankruptcy Judge
(E.D. Mich.) | Copy of opinion
from In re Dow
Corning Corp. |
|
| While the author has no strong
opinion in the wisdom of having Bankruptcy Appelalte Panels, he suggests
that better staffing of the panels would dispel much of the criticism
they have drawn. | In order to address
institutional and constitutional concerns, the Bankruptcy Appellate
Panels should consist of two Article III juducial officers (either a
district judge and a circuit judge or two district judges) together with
one bankruptcy judge. Every order the Panel issues should require at
least two votes. The presence of the Article III judge will give the
orders precedential effect, and the Bankruptcy Judge will contribute
expertise. |
NBRC-
0304 | Arthur J. Spector | Bankruptcy Judge
(E.D. Mich.) | Copy of opinion
from In re Dow
Corning Corp. |
|
| Current appellate process is
flawed because (1) in small cases, parties rarely have the financial
wherewithal or amount at stake to proceed through two trials and two
appeals, and (2) by the time a second appeal is concluded, important
events could either moot the appeal or be substantially delayed at great
prejudice to the litigants or other parties in
interest. | The author also supports the
creation of direct appeal to the Courts of Appeals. |
NBRC-
0307 | Leon S. Forman | On behalf of the
American College of Bankruptcy (ACB) | "Revised Summary of College Positions," and names and
addresses of ACB focus group members |
|
| ACB concludes that two levels of appeal in bankruptcy proceedings
of final orders as of right lead to delay in achieving a final
resolution of disputes as well as increased costs. In addition, because
an appellate decision by a district judge is not binding precedent, the
same issues are constantly being relitigated. | ACB recommends that direct appeal from the Bankruptcy Court be
created, thereby eliminating the intermediate appeal to the District
Court. If intermediate appeal is to be retained, Bankruptcy Appellate
Panels (BAP's) consisting of bankruptcy judges should be mandatory in
every circuit. If a BAP is made mandatory, the legislation should
provide that a BAP decision is binding precedent upon bankruptcy judges
in that circuit. |
NBRC-
0320 | Robert M. Zinman, on behalf of the Bankruptcy
Institute | American Bankruptcy Institute
("ABI") | Numerous position papers,
memoranda and research material |
|
| In this statement before the NBRC, the author states that ABI
members generally believe that appeals to the U.S. District Court are
not only time consuming and expensive, but the resulting appeal lacks
precednetial value and frequently is not affordd the same degree of
analytical review as an appellate panel decision. | Supports an amendment that would eliminate appeal of bankrtupcy
cases to U.S. District Courts. |
NBRC-
0327 | John P. Hennigan, Jr. | Professor, St.
John's University |
| 28 U.S.C. §§ 158, 1291, 1292, 1334,
1452 | 305 | The
author provides a copy of an article he wrote entitled "Thoughts on
Regularizing the Bankruptcy Appeals Statutes." The author
concludes that the confusion besetting appealability in bankruptcy would
be consdierably dissipated if the courts would adhere to the
non-bankruptcy federal law of appealability unless departure is
justified by some clearly-articulated peculiarity of bankruptcy
litigation. | 28 U.S.C. §§ 158(a),
158(d), 1291, 1292, 1334, and 1452 and 11 U.S.C. § 305 should be
amended to eliminate "irregularities" and
"regularize" their application. Suggested statutory language
is provided. |
NBRC-
0378 | New York Law Journal | Corporate Update
column, The New York Law Journal (author not
listed) |
|
|
| In this article entitled "Lawyers Wary of New System Begun
This Month," the author reports that "[the Bankruptcy
Appellate Panel] program begun this month in the Second Circuit is aimed
at speeding up bankruptcy appeals and bringing a degree of
specialization to the process." The program, however, has met
skepticism from local bankruptcy attorneys who say the problems intended
to be corrected do not exist in the Second Circuit. | None. |
NBRC-
0466 | Paul Baisier | Attorney |
|
| 11 | Author heard that commission is seriously considering having
banruptcy appeals heard directly by the court of appeals. That was the
thrust of an article he and David Epstein wrote in the American
Bankruptcy Law Journal in the Fall or 1995. | Author supports having bankruptcy appeals heard directly by the
court of appeals. |
NBRC-
0604 | Richard H. Walker | General Counsel,
Securities and Exchange Commission | Document
entitled "Issues Identified by Division of Enforcement and Office
of General Counsel of Securities and Exchange Commission for
Consideration by Bankruptcy Review Commission. |
|
| Currently, appeals from bankruptcy courts are taken to the
district courts. In the majority of cases, the district court decision
is unpublished. Reversals of bankruptcy decisions often do not get
reported. This is a particular problem where the bankrutpcy court
published its decision and it is erroneously being cited as
precedent. | A table system should be
established in the Bankruptcy Reporter to publish the outcomes of
bankruptcy appeals. |
NBRC-
0910 | Robert M. Zinman | Professor of Law,
St. John's University | Memo dated May 19,
1997 to Bob Zinman from John Hennigan |
|
| Author is forwarding copies of two articles written by Prof. John
Hennigan dealing with the same subject matter as Proposal #4 of the
Jurisdiction Working Group. Copies of the articles were not included in
the material for the database. | See
articles. |
NBRC-
1163 | Richard L. Haeussler | Attorney |
|
|
| "I believe that an appeal to the District Court is a waste
of time." | "I do believe that the
review by the BAP is a worthwhile substitute. and (sic) then review by
the Circuit Court of Appeals. One change I would suggest is that no
oral argument be allowed for appeals to the Circuit Courts unless the
Court asks for argument. The Court could ask for supplemental briefing
in lieu of oral argument at its option." |
