Benny, In re
| Citation | 812 F.2d 1133 |
| Decision Date | 20 October 1986 |
| Docket Number | Nos. 86-2636,86-2637,s. 86-2636 |
| Parties | , 16 Collier Bankr.Cas.2d 538, 7 Fed.R.Serv.3d 167, 15 Bankr.Ct.Dec. 1389, Bankr. L. Rep. P 71,719 In re George I. BENNY and Alexandra Benny, Debtors. Alexandra BENNY, Appellant, v. John M. ENGLAND, Trustee, Chicago Title Insurance Company, Creditor, etc., et al., Appellees. UNITED STATES of America, Intervenor-Appellant, v. John M. ENGLAND, Trustee, Chicago Title Insurance Company, Creditor, etc., et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Law Offices of John T. Hansen, John T. Hansen, Lewis C. Maldondo, San Francisco, Cal., for Benny.
Richard K. Willard, Asst. Atty. Gen., Joseph P. Russoniello, U.S. Atty., Paul Blankenstein, Appellate Litigation Counsel, Judith F. Ledbetter, Atty., Dept. of Justice, Washington, D.C., for U.S.
Steven R. Ross, Gen. Counsel to the Clerk, Charles Tiefer, Deputy Gen. Counsel to the Clerk, Michael L. Murray, Asst. Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., for Speaker & Bipartisan Leadership Group of the House of Representatives.
Michael Davidson, Morgan J. Frankel, Office of Senate Legal Counsel, Washington, D.C., for U.S. Senate.
Laurence J. Kaiser, Kronish, Lieb, Shainswit, Weiner & Hellman, New York City, for Bankruptcy Judges.
Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.
This case involves an appeal from a district court's order upholding the constitutionality of sections 106 and 121 of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (the 1984 Act). We affirm the holding of the district court that the challenged provisions of the 1984 Act do not violate the Appointments Clause.
The involuntary bankruptcy proceeding that gives rise to this appeal was filed against the Bennys in 1982. After the bankruptcy court entered an order for relief of creditors, the Bennys moved the bankruptcy court for reconsideration. Alexandra Benny (Benny) also moved to dismiss the proceeding on the basis that the bankruptcy judge improperly exercised jurisdiction over the bankruptcy proceedings because he was unconstitutionally reinstated to office. The district court granted Benny's motion for partial withdrawal of the reference to bankruptcy court with respect to the constitutional issue.
Benny subsequently filed a motion in district court seeking: (1) a declaration that Congress violated the Constitution in passing sections 106 and 121 of the 1984 Act, which extended bankruptcy judges' terms retroactively to June 28, 1984 and prospectively for two to four years; and (2) rescission of the Northern District of California's July 20, 1984 general reference order referring all bankruptcy matters to bankruptcy judges. The crux of her argument was that either the bankruptcy judgeships or the bankruptcy judges' terms of office had terminated on June 28, 1984, on the expiration of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549. She contended that the 1984 Act Secs. 106 and 121 constituted congressional reinstatement of the bankruptcy judges, which violated the Appointments Clause, U.S. Const. art. II, Sec. 2, cl. 2.
The Bennys' trustee in bankruptcy and a committee of the Bennys' unsecured creditors opposed the motion. Shortly thereafter, the Department of Justice (the Department) intervened pursuant to 28 U.S.C. Sec. 2403(a) (1982), and submitted a memorandum in support of Benny's position that the sections were unconstitutional. The United States Senate (the Senate) and the Speaker and Bipartisan Leadership Group of the House of Representatives (the House) sought leave to intervene, which the court granted, and argued that the sections were constitutional. 1
The court heard argument on the motion on November 2, 1984. On November 30 On February 12, 1985, the district court certified its order that upheld the constitutionality of sections 106 and 121 for immediate appeal pursuant to 28 U.S.C. Sec. 1292(b). The Department filed a petition for leave to appeal on February 25. On May 21, this court granted the petition and directed the parties to discuss whether 28 U.S.C. Sec. 1292(b) applies to this case. In the same order, the court consolidated the appeal with the appeals described above.
1984, the court entered an order rejecting the constitutional challenge to sections 106 and 121 of the 1984 Act. Benny and the Department immediately appealed, asserting jurisdiction pursuant to 28 U.S.C. Sec. 1291.
In our earlier decision, we dismissed Benny's and the Department's appeals grounded on section 1291 because the order appealed from was not final as required by that section. In re Benny, 791 F.2d 712, 718-19 (9th Cir.1986). We also dismissed the Department's appeal grounded on section 1292(b) as improvidently granted because the petition for leave to appeal was not timely filed. Id. at 719-20.
The district court recertified its order for interlocutory appeal on August 29, 1986. Benny and the Department both filed timely petitions for leave to appeal.
We must once again determine our own jurisdiction over this appeal. We dismissed the Department's earlier appeal in this case without reaching the merits because we lacked appellate jurisdiction. See In re Benny, 791 F.2d 712. One of the bases for that dismissal was that the Department's petition for leave to appeal was filed more than ten days after the district court's certification of the case for interlocutory appeal under 28 U.S.C. Sec. 1292(b). The failure to meet this ten-day deadline prevented us from asserting jurisdiction. See In re Benny, 791 F.2d at 719-20.
Since our earlier dismissal, Benny has returned to the district court, obtained recertification for interlocutory appeal, and Benny and the Department have filed timely petitions in this court for leave to appeal. This court has never directly addressed the issue of whether a recertification can cure a jurisdictional defect caused by a failure to timely petition from an earlier certification, although we suggested that such a cure is possible in Benny. Id. at 722 n. 14.
The timely filing of a petition for leave to appeal following district court certification pursuant to 28 U.S.C. Sec. 1292(b) is jurisdictional. In re Benny 791 F.2d at 719; see also United States v. Preston, 352 F.2d 352, 353 & n. 1 (9th Cir.1965). This court has no authority to extend the ten-day time limit. Fed.R.App.P. 26(b). However, this circuit has not yet determined whether a district court may effectively extend the time for filing a petition for leave to appeal by recertifying its order. Although nothing in the rules expressly permits the district court to extend the time for a petition for leave to appeal, cf., e.g., Fed.R.App.P. 4(a)(5) (), nothing specifically precludes the district court from doing so.
The other circuits have split in their approaches to this issue. The Sixth Circuit has held that a district court may not recertify to permit the filing of a timely petition if counsel's neglect caused the failure to file a timely petition from the original certification. See Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir.1971) (per curiam). The Third Circuit adopted similar reasoning in Braden v. University of Pittsburgh, 552 F.2d 948, 950-55 (3rd Cir.1977) (en banc). The court in Braden allowed the district court to recertify if the district court clerk's failure to provide timely notice of the original certification caused the initial failure to file a timely petition. The court distinguished the situation in which the petitioning party had simply been remiss in pursuing an attempt to appeal. 2 The First and Fifth Circuits have adopted more flexible approaches. The First Circuit has implicitly approved a recertification, even though counsel's neglect caused the failure to file a timely petition after the original certification. See In re La Providencia Dev. Corp., 515 F.2d 94, 95-96 (1st Cir.1975) (per curiam) (). The Fifth Circuit squarely permits recertification if the district court determines that the statutory criteria are still met, noting that the petitioner's failure to take advantage of the original certification is a factor to be considered by the district court in deciding whether to recertify its ruling and by the appellate court in deciding whether to grant the petition. Aparicio v. Swan Lake, 643 F.2d 1109, 1110-13 & nn.4, 5 (5th Cir.1981); see Aucoin v. Matador Serv. Inc., 749 F.2d 1180, 1181 (5th Cir.1985).
Although these decisions' liberal approach to recertification correctly takes into account the interlocutory nature of the appeal, they seem to us to go too far in the other direction. They effectively eliminate the ten-day jurisdictional limit completely by allowing apparently uncontrolled and repeated recertifications, a step we are not willing to take. We therefore elect to take the middle road adopted by the Seventh Circuit in Nuclear Engineering Co. v. Scott, 660 F.2d 241, 247 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982). In Nuclear Engineering, the Seventh Circuit held that the critical inquiry is whether recertification advances the purposes of section 1292(b). If recertification will foster judicial efficiency and the district court recertifies the order, then the appellate court ought not to deny review solely because the petitioner failed to take advantage of the original certification. We therefore hold that if, as in this case, a district court on reconsideration recertifies for interlocutory appeal an order that was previously certified for appeal but from which the appellant failed to timely petition to appeal, the...
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