The Ninth Circuit granted rehearing en banc to review a decision from late March where the appeals court held, over a vigorous dissent, that Bankruptcy Appellate Panels were not “established by an Act of Congress” and thus lacked jurisdiction to issue writs of mandamus under the All Writs Act contained in 28 U.S.C. Section 1651(a).
Without briefing from the parties, the Ninth Circuit held sua sponte in an opinion on March 25 by Circuit Judge J. Clifford Wallace that BAPs were not “established by an Act of Congress.” Instead, the majority concluded that BAPs were created at the “discretion” of the “judicial council of each circuit” under 28 U.S.C. Section 158(b)(1).
Although he agreed with the judgment, Circuit Judge Jay S. Bybee “emphatically” dissented. He “vigorously” disagreed “with everything else” in the majority’s opinion.
On its own, the circuit panel directed the parties to submit briefs taking a position on whether the case should be reheard en banc. The bank involved in the appeal took no position on the power of a BAP and no position on rehearing en banc.
The American Bar Association and the California Bankruptcy Forum both submitted amicus briefs imploring the court to rehear the case en banc and reverse the majority’s opinion.
On rehearing, the appeals court will need amicus briefs from both sides. The appellant, who ostensibly won in the circuit court, is an individual proceeding pro se. The winner was a bank with little financial incentive and may not necessarily agree with the majority’s holding about BAPs.
To read ABI’s discussion of the March decision, click here. For the circuit’s order calling for rehearing en banc, click here. To read the panel’s majority opinion and dissent, click here.