Perroton, In re
Citation | 958 F.2d 889 |
Decision Date | 17 September 1991 |
Docket Number | No. 89-15420,89-15420 |
Parties | , 26 Collier Bankr.Cas.2d 890, 22 Bankr.Ct.Dec. 1152, Bankr. L. Rep. P 74,510 In re Jon Robert PERROTON, Debtor. Jon Robert PERROTON, Appellant, v. Nancy L.G. GRAY, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Jon Robert Perroton, pro se.
Appeal from the Ninth Circuit Bankruptcy Appellate Court.
Before CHOY, ALARCON and T.G. NELSON, Circuit Judges.
On January 3, 1989 the BAP notified Perroton that his appeal would be dismissed unless he paid the $105.00 filing fee required by §§ 1930(b) & (c) ( ). On January 21, 1989 Perroton filed a motion to pursue his appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a). 1 The BAP issued an order on February 15, 1989 denying Perroton's motion and notified him that his appeal would be dismissed unless he paid the filing fee within fifteen days of the date of the order. On March 6, 1989 Perroton filed with the BAP a notice of appeal to this Circuit. Over one month later, on March 22, 1989 the BAP dismissed Perroton's appeal for failure to pay the appropriate filing fee.
On September 27, 1991 this panel ordered the Office of the United States Trustee for the Northern District of California to file an amicus brief addressing the question of whether the Supreme Court's holding in United States v. Kras, 409 U.S. 434, 440, 93 S.Ct. 631, 635, 34 L.Ed.2d 626 (1973), also applies to the additional fees prescribed by 28 U.S.C. § 1930(b) and (c). 2 Kras held that under the Bankruptcy Act all parties were required to pay commencement fees for filing a petition for bankruptcy and that the earlier pauperis statute which contained the same language as § 1915(a), was not applicable to bankruptcy proceedings under the Act. Kras, 409 U.S. at 439-40, 93 S.Ct. at 634-35. 3 We asked that, in addition to presenting original research and analysis on this question, the Trustee critique the rationales set forth in a number of cases which either followed, limited, or rejected the holding of Kras as applied to §§ 1930(b) & (c) fees and that he examine the legislative history of 1930 to determine whether that history reveals Congress's intent, if any, to render Kras applicable to subsections (a), (b), and/or (c). The Trustee filed his amicus brief on November 6, 1991 and Perroton failed to file a reply brief although he was given leave to file one.
Under § 1915(a) "[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor...." 28 U.S.C. § 1915(a) (emphasis added). Section 451 contains the definitions for various Only four reported cases have addressed whether a bankruptcy court is "court of the United States" under § 451 in the context of the bankruptcy court's authority to act under § 1915(a). In re Broady, 96 B.R. 221 (Bankr.W.D.Mo.1988); In re Shumate, 91 B.R. 23 (Bankr.W.D.Va.1988); In re Bauckey, 82 B.R. 13 (Bankr.N.J.1988); In re Sarah Allen Home, Inc., 4 B.R. 724 (Bankr.E.D.Pa.1980). Both the Broady and Bauckey courts denied the petitioners leave to file in forma pauperis after concluding that a bankruptcy court is not a "court of the United States" under § 1915(a). The courts reasoned that a "court of the United States," as defined by 451, is one created under Article III of the Constitution and that the provisions of Title 28 relating to a "court of the United States," therefore, are applicable only to Article III courts. Broady and Bauckey concluded that, since bankruptcy courts are not Article III courts whose judges are entitled to hold office during good behavior, they lack the authority to waive prepayment of filing fees under § 1915(a). Broady, 96 B.R. at 222-23; 4 Bauckey, 82 B.R. at 14; 5 see Sarah Allen, 4 B.R. at 726-27. 6 Similarly, a number of courts have held that a bankruptcy court is not a "court of the United States" under § 451 and therefore lacks the authority to act under other sections of Title 28 where this phrase is used. In re Arkansas Communities, Inc., 827 F.2d 1219, 1221 (8th Cir.1987) ( ); In re Memorial Estates, 116 B.R. 108, 110 (Bankr.N.D.Ill.1990) ( ); In re Richardson, 52 B.R. 527, 531-32 (Bankr.W.D.Mo.1985) (same); see In re Becker's Motor Transp., 632 F.2d 242, 246-47 (3d Cir.1980) (, )cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 Shumate is the only case holding that a bankruptcy court is a "court of the United States" under § 451 and thus that it has the authority to waive fees under § 1915(a). 8 In Shumate the debtor filed a petition to appeal an order of the bankruptcy court in forma pauperis under § 1915(a) and the defendant argued that the bankruptcy court is not a "court of the United States" under § 451 and therefore lacked the authority to grant leave to proceed in forma pauperis. The defendant noted that in the Bankruptcy Act of 1978 Congress amended § 451 to include the bankruptcy court as "court of the United States," but that the amendment was deleted before it took effect. See infra section 3 ( ). The defendant contended that this deletion indicated that the bankruptcy court was not intended to be a "court of the United States" under § 451.
151, 11 and 152(a)(1) 12 and on the fact that the language of § 451 neither specifically requires that the judges of a "court of the United States" be Article III judges nor, does it make good behavior the only condition for their service. Id. at 26.
When interpreting a statute a court first must examine the statutory language. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). If the language of the statute is clear and unambiguous, judicial inquiry is complete and that language controls absent rare and exceptional circumstances. Id.; Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981). Moreover, in statutes that contain statutory definition sections it is commonly understood that such definitions establish meaning where the terms appear in that same Act. 2A Norman J. Singer, Sutherland on...
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