Barrier, In re, 85-4758

Citation776 F.2d 1298
Decision Date22 November 1985
Docket NumberNo. 85-4758,85-4758
Parties13 Collier Bankr.Cas.2d 1238, 13 Bankr.Ct.Dec. 1330, Bankr. L. Rep. P 70,877 In re Jerry B. BARRIER, Debtor. NATIONAL BANK OF COMMERCE, Appellant, v. Jerry B. BARRIER, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

J. Stephen Wright, James R. Mozingo, Jackson, Miss., W. Thomas Newton, J. Mark Griffee, Memphis, Tenn., for appellant.

Charles P. Adams, Jackson, Miss., for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, JOHNSON and JONES, Circuit Judges.


Having reconsidered this court's previous denial of relief to appellant National Bank of Commerce (NBC) and accompanying reasons therefor, we now issue a limited mandamus, requiring the district court to issue a stay of the bankruptcy court's order confirming the debtor's plan of reorganization (and all matters contained therein) and requiring the district court to hold a prompt hearing on the merits of the appeal of that confirmation. A brief explanation of our action is required. 1

Both parties have submitted briefs addressing the possible alternatives by which NBC may seek relief in this court from the district court's denial of a stay pending appeal to the district court of the bankruptcy court's order confirming the plan of reorganization. We believe, following the Ninth Circuit, that mandamus is the only available remedy in this case. See In re Teleport Oil Co., 759 F.2d 1376 (9th Cir.1985).

This court exercises jurisdiction of "appeals from all final decisions, judgments, orders, and decrees" of the district courts in bankruptcy matters. 28 U.S.C. Sec. 158(d). It is certainly true that the concept of "finality," when applied in the context of bankruptcy matters, must be defined flexibly and pragmatically. Teleport Oil Company, 759 F.2d at 1377. Nevertheless, the district court's decision to deny a stay pending appeal of Barrier's plan of reorganization was not a final order. It did not conclusively determine the outcome of the appeal, which remains pending, even though, as will be noted below, the denial has a serious adverse impact on appellant NBC. See In re Emerald Oil Co., 694 F.2d 88 (5th Cir.1982).

Moreover, the district court's denial of a stay cannot be reviewed by this court pursuant to 28 U.S.C. Sec. 1292, governing interlocutory appeals. The bankruptcy appellate scheme now enacted in 28 U.S.C. Sec. 158, which appears to be comprehensive, clearly supersedes 28 U.S.C. Sec. 1291, covering appeals from final judgments of the district court, and would inferentially appear to supersede Sec. 1292 as well. Assuming this to be the case, any injustices resulting from the inapplicability of Sec. 1292 could arguably be cured by a more expansive definition of "finality," where the special characteristics of bankruptcy practice require it. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3926 (1985). Supporting our interpretation in addition to Teleport, is Regency Woods Apartments, Ltd., 686 F.2d 899, 901 (11th Cir.1982). The modifications in bankruptcy appellate procedure brought about by amendment of former 28 U.S.C. Sec. 1293 to become Sec. 158(d) did not affect the holding of the Eleventh Circuit in this regard.

Appellant has additionally asked us to consider granting a stay based on Federal Rule of Appellate Procedure 8(a). That argument fails because the rule only authorizes stays pending appeals to this court. There is no appeal pending from the district court to this court, only a request for reversal of the interlocutory order denying a stay.

As drastic as the remedy is, however, we believe that a mandamus must be issued to the district court in this case. See Southern Pacific Trans. v. San Antonio, Texas, 748 F.2d 266, 270 (5th Cir.1984). Mandamus "is awarded, not as a matter of right, but in the exercise of a sound judicial discretion." Duncan Townsite Co. v. Lane, 245 U.S. 308, 311, 38 S.Ct. 99, 101, 62 L.Ed. 309 (1917). This case is extraordinary because, as we have found, there is no other avenue of appeal available to NBC because there is a serious potential for irreparable harm in the absence of a stay, and because the district court and bankruptcy...

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  • Browning v. Navarro
    • United States
    • U.S. Court of Appeals — Fifth Circuit
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    ...See In re Watson, 884 F.2d 879 (5th Cir.1989); In re Delta Servs. Industr., 782 F.2d 1267, 1268-69 (5th Cir.1986); In re Barrier, 776 F.2d 1298, 1299 (5th Cir.1985) and In re Teleport Oil Co., 759 F.2d 1376, 1377-78 (9th Cir.1985). When a bankruptcy matter is heard first by a federal distri......
  • First South Sav. Ass'n, In re
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    • 25 d4 Outubro d4 1990
    ...relief may be available to gain appellate review of bankruptcy orders that are otherwise non-appealable. See, e.g., In re Barrier, 776 F.2d 1298 (5th Cir.1985) (per curiam). Moreover, that a motions panel of our court has summarily denied mandamus relief does not preclude reconsideration of......
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