The Ninth Circuit needs amicus briefs in connection with a possible en banc rehearing from an opinion in late March denigrating the status of the bankruptcy appellate panels.
Over a vigorous dissent, the Ninth Circuit held in late March that BAPs were not “established by an Act of Congress” and thus lack jurisdiction to issue writs of mandamus under the All Writs Act, 28 U.S.C. Section 1651(a).
Without briefing from the parties or seeking amicus briefs on the issue, the majority on the Ninth Circuit panel held sua sponte that BAPs were created at the “discretion” of the “judicial council of each circuit” under 28 U.S.C. Section 158(b)(1). The majority said that BAPs are formed “on a temporary basis” and have “none of the permanency of a court.”
Circuit Judge Jay S. Bybee “emphatically” dissented.
Without explanation, the panel recalled the mandate on May 2. Ten days later, the panel ordered the parties to submit briefs within 21 days “as to whether the case should be reheard en banc.”
The court desperately needs amicus briefs on both sides of the issue. The appellant, who ostensibly won in the circuit court, is an individual proceeding pro se. The winner is a bank with little financial incentive.
To read the ABI analysis of the majority opinion and the dissent, click here.