In re Mesaba Aviation, Inc.

• Decision Date: 16 November 2009
• Docket Number: BAP No. 08-6038.
• Citation: 418 B.R. 756
• Parties: In re MESABA AVIATION, INC., Debtor. Coleen L. Powers, Appellant, v. Odyssey Capital Group, LLC, Appellee.
• Court: U.S. Bankruptcy Appellate Panel, Eighth Circuit

418 B.R. 756

In re MESABA AVIATION, INC., DebtorColeen L. Powers, Appellant, v.Odyssey Capital Group, LLC, Appellee.

BAP No. 08-6038.

United States Bankruptcy Appellate Panel of the Eighth Circuit.

Submitted: October 16, 2009.

Filed: November 16, 2009.

COPYRIGHT MATERIAL OMITTED

Michael L. Meyer, Will R. Tansey, Minneapolis, MN, for appellee.

Before SCHERMER, VENTERS and SALADINO, Bankruptcy Judges.

SCHERMER, Bankruptcy Judge.

Coleen L. Powers("Powers") appeals three orders entered by the bankruptcy court.¹The first two orders, entered on September 12, 2008, closed Mesaba Aviation, Inc.'s (the "Debtor")²chapter 11 bankruptcy case (the "Closing Order") and overruled Powers' objection to the case closing (the "Overruling Order" and together with the Closing Order, the "CaseClosing Orders").The third order that Powers appeals was entered on May 1, 2009(the "Final Order").The Final Order denied Powers' requests that the bankruptcy court: (1) reconsider the Case Closing Orders; (2) allow Powers to proceed in forma pauperis("IFP") for this appeal; and (3) seal Powers' IFP application or reconsider its previous order denying her request for IFP status.We also consider Powers' requests for appointment of counsel and oral argument in this appeal.We have jurisdiction over this appeal from the final orders of the bankruptcy court.See28 U.S.C. § 158(b).We also have jurisdiction to consider Powers' requests for appointment of counsel and oral argument.For the reasons set forth below, we affirm the decisions of the bankruptcy court and we deny Powers' request for appointment of counsel and for oral argument.

ISSUES

Powers' principal brief lists 35 issues that she alleges are on appeal, including some that have already been decided by the Eighth Circuit and others that were never raised before the bankruptcy court.We understand the issues that are properly on appeal to include whether the bankruptcy court erred when it: (1) closed the Debtor's bankruptcy case and declined to reconsider that decision; (2) denied Powers' request to proceed IFP for this appeal; and (3) refused to seal Powers' IFP application and did not afford Powers relief from its prior order denying her request to seal.We conclude that Powers lacks standing to challenge the closing of the Debtor's bankruptcy case and, accordingly, that the bankruptcy court properly denied her request for relief from the Case Closing Orders.In addition, Powers' requests to appear IFP and to seal her IFP application are moot.The bankruptcy court properly denied Powers' request to seal her IFP application because she failed to demonstrate how the information in her application was scandalous or defamatory.Because we are not permitted to appoint counsel to represent Powers and we are not required to allow her oral argument in this appeal, we decline to do either.

BACKGROUND

Events in Debtor's Bankruptcy Case Leading to Closing

On October 13, 2005, the Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code(the "Bankruptcy Code").Powers filed her proof of claim which is number 638.The bankruptcy court disallowed Powers' claim and denied her motion to reconsider the claim disallowance (the "Claim Disallowance Orders").At about the same time, the court confirmed the Debtor's plan of reorganization.Thereafter, the bankruptcy court also entered orders, over the objection of Powers, allowing compensation to certain of the Debtor's professionals (the "Fee Orders").

Powers appealed to the district court from the bankruptcy court's Claim Disallowance Orders.On August 3, 2007, the district court dismissed her appeal with prejudice as being untimely.It also denied a request by Powers to reconsider the dismissal of her appeal.Powers appealed to the bankruptcy appellate panel(the "BAP") from the Fee Orders.On August 20, 2007, the BAP dismissed Powers' appeal of the Fee Orders for lack of standing.Powers appealed the district court and BAP decisions to the Eighth Circuit.

As administration of the Debtor's plan neared completion, the bankruptcy court prepared to close the Debtor's case.On August 21, 2008, the court entered an order setting a deadline for the filing of reports regarding any further judicial proceeding to be commenced or any other reason to keep the case open.Powers filed a timely objection to the proposed case closing on the ground that the bankruptcy court should retain jurisdiction pending resolution of her appeals to the Eighth Circuit.

Bankruptcy Court's Orders Closing Debtor's Case

On September 12, 2008, the bankruptcy court entered its Case Closing Orders.In the Overruling Order, it overruled Powers' objection to the case closing.The court agreed with Powers that it would need jurisdiction to rule in the event that the Eighth Circuit reversed and remanded any proceedings to it, but noted that keeping the case open during the pendency of Powers' appeals would impose an unnecessary financial burden on other parties because all other proceedings in the case had been finalized.Accordingly, the court ruled that, in the event of post-appellate remand, it would act sua sponte to reopen the Debtor's case, pursuant to 11 U.S.C. § 350(b), and would waive the reopening fee, thus accommodating Powers' concerns without financially burdening other parties.

Despite the bankruptcy court's thoughtful resolution of her objection, Powers elected to dispute the Case Closing Orders.On September 22, 2008, Powers filed a motion to reconsider both ordersand a notice of appeal of both orders.³On September 29, 2008, Powers applied to proceed IFP for this appeal and requested that the court seal her financial information contained in her IFP application.The bankruptcy court denied Powers' request to seal the same day that Powers filed it.On October 8, 2008, Powers sought relief in the bankruptcy court from the order denying her request to seal.Her motion for relief included a "repeated"motion to seal.

Stay of Proceedings Before the BAP and Request for Appointment of Counsel

Meanwhile, the BAP stayed the proceedings in Powers' appeal of the Case Closing Orders on October 1, 2008, terminated the stay on March 19, 2009, and again stayed the proceedings on April 13, 2009.The BAP's April 13, 2009 order operated to hold Powers' appeal in abeyance "pending entry of a final order by the bankruptcy court on her motion to reconsider."In connection with various motions filed by Powers, including her requests that the BAP hold its proceedings in abeyance, Powers requested that the BAP appoint counsel to represent her in this appeal.On June 23, 2009, the BAP entered an order instructing this panel to consider Powers' request for the appointment of counsel.

Bankruptcy Court's Final Order

On May 1, 2009, the bankruptcy court entered the Final Order, denying each of Powers' then outstanding requests for relief.First, the court denied Powers' request that it reconsider the Case Closing Orders because her motion merely repeated substantive arguments she had already made in her objection to the case closing and did not satisfy the requirements for relief under Federal Rule of Civil Procedure 59(e).Next, based on her inability to demonstrate why the information she sought to seal was protected from public disclosure under the applicable law, failure to satisfy the requirements for relief under Rule 59(e), and res judicata,the court denied Powers' requests to seal her application to proceed IFP or reconsider its previous order denying her request to seal.Last, the court denied Powers' request to proceed IFP, finding that Powers had not proceeded in good faith by seeking review of the Overruling Order, which was carefully structured to protect her rights.

Events After Entry of Final Order

On May 11, 2009, Powers amended the Notice of Appeal that she had previously filed on September 22, 2008.Her September 22, 2008 Notice of Appeal sought review of the Case Closing Orders.By the Amended Notice of Appeal, Powers added the Final Order to the list of matters for appeal.On May 12, 2009, Powers filed a motion in the bankruptcy court seeking relief from the Final Order.⁴The bankruptcy court has not ruled on Powers' motion for relief from the Final Order.

After the bankruptcy court entered its Final Order and Powers filed her Amended Notice of Appeal, Powers' Eighth Circuit appeals regarding the Claim Disallowance Orders and the Fee Order ultimately proved to be unsuccessful.On July 7, 2009, the Eighth Circuit affirmed the district court's and BAP's dismissal of Powers' appeals.

Waiver of Filing Fee and Request for Oral Argument

In May of 2009, Powers asked the BAP to grant her the same relief that the bankruptcy court had already denied, waiver of the filing fee for her appeal.After twice ordering Powers to pay the filing fee, on June 9, 2009, an administrative panel of the BAP granted Powers permission to proceed IFP.⁵

On August 6, 2009, this Court sent a letter indicating that this case had been selected for submission to this panel without oral argument.Powers filed a timely objection to the "no argument" classification for this appeal, together with requests that the BAP reconsider the "no argument" classification and grant her separate request for oral argument.

Powers now seeks review of the Case Closing Orders and the Final Order.We also address Powers' requests for appointment of counsel and for oral argument.

STANDARD OF REVIEW

We review the bankruptcy court's findings of fact for clear error and its conclusions of law de novo.DeBold v. Case,452 F.3d 756, 761(8th Cir.2006);Kaelin v. Bassett(In re Kaelin),308 F.3d 885, 888(8th Cir.2002);Fokkena v. Klages(In re Klages),381 B.R. 550, 553(8th Cir. BAP2008).The grant or denial of a motion for relief from judgment under Federal Rule of Civil Procedure 59(e) is reviewed for abuse of discretion.Anderson v. Family Dollar Stores...