899 F.3d 1240 (11th Cir. 2018), 15-11690, Bennett v. Jefferson County, Alabama

Docket Nº:15-11690
Citation:899 F.3d 1240, 66 Bankr.Ct.Dec. 26
Opinion Judge:JORDAN, Circuit Judge:
Party Name:Andrew BENNETT, Jefferson County Tax Assessor, Bessemer Division, Roderick V. Royal, Former Birmingham City Council President, Mary Moore, Alabama State Legislator, John W. Rogers, Alabama State Legislator, William R. Muhammad, et al., Plaintiffs-Appellees, v. JEFFERSON COUNTY, ALABAMA, Defendant-Appellant.
Attorney:Calvin Grigsby, Law Office of Calvin Grigsby, Danville, CA, Frederick Thurman Kuykendall, III, Hausfeld, LLP, Washington, DC, Arthur J. Spector, Berger Singerman, LLP, Boca Raton, FL, David A. Sullivan, David A. Sullivan Atty At Law, Birmingham, AL, for Plaintiffs-Appellees. Kenneth Nathan Klee, ...
Judge Panel:Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.
Case Date:August 16, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1240

899 F.3d 1240 (11th Cir. 2018)

66 Bankr.Ct.Dec. 26

Andrew BENNETT, Jefferson County Tax Assessor, Bessemer Division, Roderick V. Royal, Former Birmingham City Council President, Mary Moore, Alabama State Legislator, John W. Rogers, Alabama State Legislator, William R. Muhammad, et al., Plaintiffs-Appellees,

v.

JEFFERSON COUNTY, ALABAMA, Defendant-Appellant.

No. 15-11690

United States Court of Appeals, Eleventh Circuit

August 16, 2018

Page 1241

[Copyrighted Material Omitted]

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Calvin Grigsby, Law Office of Calvin Grigsby, Danville, CA, Frederick Thurman Kuykendall, III, Hausfeld, LLP, Washington, DC, Arthur J. Spector, Berger Singerman, LLP, Boca Raton, FL, David A. Sullivan, David A. Sullivan Atty At Law, Birmingham, AL, for Plaintiffs-Appellees.

Kenneth Nathan Klee, Lee R. Bogdanoff, Whitman L. Holt, Robert J. Pfister, David Marc Stern, Klee Tuchin Bogdanoff & Stern, LLP, Los Angeles, CA, James B. Bailey, Jay Robert Bender, Richard Aaron Chastain, Nicholas Adam Danella, John Patrick Darby, Christopher Lee Hawkins, Matthew Howard Lembke, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendant-Appellant.

Richard Patrick Carmody, Aaron Gavin McLeod, Adams & Reese, LLP, Birmingham, AL, for Amicus Curiae National Association of Bond Lawyers.

Caitlin Joan Halligan, Gibson Dunn & Crutcher, LLP, New York, NY, Jayna Partain Lamar, Maynard Cooper & Gale, PC, Birmingham, AL, Kasdin M. Mitchell, Kirkland & Ellis, LLP, Washington, DC, for Amicus Curiae Securities Industry and Financial Markets Association.

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 2:14-cv-00213-SLB, Bkcy No. 11-bkc-05736-TBB9

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

OPINION

JORDAN, Circuit Judge:

Generally speaking, the doctrine of equitable mootness "permits courts sitting in bankruptcy appeals to dismiss challenges (typically to confirmation plans) when effective relief would be impossible." Ullrich v. Welt (In re Nica Holdings, Inc.), 810 F.3d 781, 786 (11th Cir. 2015). We have applied the doctrine in the Chapter 11 reorganization context, see, e.g., First Union Real Estate Equity & Mortg. Invs. v. Club Assocs. (In re Club Assocs.) 956 F.2d 1065, 1067-71 (11th Cir. 1992), and in Chapter 13 cases, see, e.g., Hope v. Gen. Fin. Corp. of Ga. (In re Kahihikolo), 807 F.2d 1540, 1543 (11th Cir. 1987), and we have assumed without deciding that it applies in Chapter 7 cases, see Nica Holdings, 810 F.3d at 786 n.4, but until today we have not been asked to apply the doctrine in a Chapter 9 municipal bankruptcy case.

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I

Municipal bankruptcy proceedings are usually complicated affairs, and the Chapter 9 proceeding for Jefferson County, Alabama— involving about $3.2 billion in total sewer-related debt— has proved to be no different. A detailed chronology can be found in Bennett v. Jefferson County, 518 B.R. 613, 616-26 (N.D. Ala. 2014), and In re Jefferson County, 474 B.R. 228, 236-45 (Bankr. N.D. Ala. 2012), but the relevant facts and procedural history are set forth below.

A

Jefferson County filed for bankruptcy in November of 2011. In June of 2013, following 18 months of negotiations, the County announced that it had come to an agreement in principle with almost all of its major creditors.

The final settlement, reached in November of 2013, provided that the County would issue and sell in public markets new sewer warrants (through an indenture) in the amount of approximately $1.785 billion, with the proceeds and other funds being used to redeem and retire the prior sewer warrants (which, again, totaled about $3.2 billion) at a reduced and compromised amount of about $1.8 billion.

Pursuant to the settlement, the County would cut over $100 million in general fund expenditures, the creditors would write off a significant amount in outstanding debt, and the County (or the bankruptcy court if the County failed to act) would implement a series of single-digit-percent sewer rate increases over 40 years. The County would not be able to decrease sewer rates in a given fiscal year unless it could somehow offset the decrease (by, for example, increasing its customer base). Over the course of these 40 years— the planned time period for retiring the new sewer warrants— sewer rates would increase about 365%, which is not far off of the national increase in inflation in the previous 40 years. With respect to non-sewer debt, warrants would be repaid in full on terms favorable to the County through the exchange of existing general obligation warrants and school warrants for new warrants. See

Bennett, 518 B.R. at 623-25.

At the confirmation hearing before the bankruptcy court on November 21, 2013, a group of Jefferson County ratepayers objected to the County’s proposed plan. They argued that the plan validated corrupt government activity (e.g., bribery) that procured the execution of some of the prior sewer warrants and led to the debt crisis; that the plan, by taking the ability to set rates out of the hands of elected Jefferson County commissioners, infringed on their rights to vote and to be free from overly burdensome debt without due process; and that the plan was not feasible because it was imposed over a service area with a declining population and falling income levels, and because it increased costs for a long period of time without any consideration of the users’ ability to pay. See id. at 626. One of the claims asserted by the ratepayers was that certain of the prior sewer warrants were invalid because they violated provisions of the Alabama Constitution and the United States Constitution. See id. at 626-27.

The bankruptcy court entered a confirmation order over the ratepayers’ objections on November 22, 2013, the day following the hearing. The order in part dismissed pending claims, and barred any and all persons from commencing or continuing any action to assert the claims made by the ratepayers prior to the start of, or in, the Chapter 9 bankruptcy proceeding.

In the confirmation order, the bankruptcy court retained jurisdiction for the 40-year life of the new sewer warrants to, among other things, adjudicate controversies

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regarding the validity of actions taken pursuant to the plan, including implementation or enforcement of the approved rate structure and issuance of the new sewer warrants, and enter any necessary or appropriate orders or relief (including mandamus). See Bankr. D.E. 2248 at 67-68. The disclosure statement for the indenture contained similar language describing the bankruptcy court’s retention of jurisdiction.

The plan’s effective date was December 3, 2013. Although Bankruptcy Rule 3020(e) normally imposes an automatic 14-day stay on the operation of a confirmation order, at the confirmation hearing the ratepayers did not object to the County’s motion (filed two weeks earlier) to waive the automatic stay. In the absence of an objection, the bankruptcy court exercised its discretion under Rule 3020(e) to waive the automatic stay when it entered the confirmation order. See Bennett, 518 B.R. at 626.

The ratepayers filed their notice of appeal on December 1, 2013, two days prior to the plan’s effective date. But they did not ask the bankruptcy court, or the district court, for a stay of the confirmation order pending appeal. Nor did they request that their appeal be expedited. On December 3, 2013, pursuant to the terms of the order, the County issued the new sewer warrants. The proceeds from the sale of these warrants went in part towards retiring the prior sewer warrants, with more than $1.454 billion going into a clearinghouse system to pay individual and institutional investors. See

id.

B

In the district court, the County moved to dismiss the ratepayers’ appeal, arguing in relevant part that any challenges to the confirmation order were constitutionally, statutorily, and equitably moot because the plan had been consummated and the transactions that were completed could not be unwound. The ratepayers responded that their appeal was not moot because, among other things, the bankruptcy court could not constitutionally retain jurisdiction to conform (if necessary) sewer rates to the plan over a 40-year period. In the ratepayers’ view, such rates had to be set in compliance with Alabama law. As the district court explained, the ratepayers wanted to "avoid ... paying rates set by a [County] Commission wh[ich] can be taken to the bankruptcy court if it enacts rates in violation of" the approved rate structure. Bennett, 518 B.R. at 631 n.21. The district court rejected each of the County’s mootness arguments.

First, the district court concluded that the appeal was not moot under Article III. Although the consummation of the plan might limit the scope of relief available...

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