818 F.3d 514
9th Cir.2016Background
- Petitioner Gary Ozenne, years after his bankruptcy case closed, filed a sanctions motion in the bankruptcy court; the bankruptcy court ruled it lacked jurisdiction.
- Ozenne then filed a petition for writ of mandamus with the Ninth Circuit Bankruptcy Appellate Panel (BAP); the BAP relied on In re Salter and entertained the petition under the All Writs Act, then denied it.
- Ozenne appealed the BAP denial to the Ninth Circuit. The panel sua sponte raised whether the BAP had jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a).
- The central statutory provision is 28 U.S.C. § 158(b)(1), which authorizes a circuit’s judicial council to establish a "bankruptcy appellate panel service" subject to discretion and conditions (consent of parties; council may discontinue the panel).
- The Ninth Circuit majority held the BAP is a judicial council-created panel service, not a "court established by Act of Congress" under the All Writs Act, and therefore lacks All Writs Act authority to issue mandamus.
- The court vacated the BAP decision and remanded with instructions to dismiss for lack of jurisdiction; noted district courts retain All Writs Act power to consider mandamus relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BAP is a "court established by Act of Congress" under the All Writs Act (28 U.S.C. § 1651(a)) | Ozenne (and concurring judge’s view) — § 158 derives from congressional authorization; the BAP is a court created by Act of Congress and therefore may issue writs under the All Writs Act. | Majority — § 158 delegates establishment to the circuit judicial council (discretionary, temporary "panel service"); thus the BAP was not directly "established by Act of Congress" and lacks All Writs Act authority. | Held for majority: BAP is not a "court established by Act of Congress" for § 1651(a) purposes; no All Writs Act jurisdiction to hear mandamus. |
| Whether the BAP’s exercise of mandamus jurisdiction would bypass statutory consent/election scheme in § 158(c)(1) | Ozenne — mandamus appropriate to compel jurisdiction; parties can choose BAP as appellate forum. | Majority — mandamus petitions don't trigger the appeal/election process, so BAP review would circumvent the statutory consent requirement and undermine Article III review. | Held: permitting BAP mandamus would circumvent consent scheme and threaten Article III review; supports finding no All Writs Act power. |
| Whether In re Salter correctly held the BAP had All Writs Act power | Ozenne/BAP relied on Salter (BAP precedent) that § 158 "established" BAPs for All Writs Act | Majority — In re Salter misapplied "establish"; allowing Salter’s view would broadly extend writ power to many tribunals not directly created by Congress. | Held: Overruled In re Salter; BAP lacks All Writs Act authority. |
| Whether the decision raises separation-of-powers concerns (delegation to judicial councils) | Concurrence (Bybee J.) — majority’s ruling raises constitutional difficulty by implying Congress delegated court-creation power to judicial councils; better to avoid broad constitutional questions and treat BAP as a court under § 1651. | Majority — BAP’s creation by judicial council is administrative and preserves Article III oversight; ruling avoids expanding judicial power in ways that could infringe Article III. | Held: Majority declines to adopt concurrence’s constitutional concerns as a reason to treat BAP as established by Congress; resolves on statutory grounds that BAP is not a § 1651 court. |
Key Cases Cited
- Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (plurality; limits on non-Article III exercise of "essential attributes" of judicial power)
- In re Burley, 738 F.2d 981 (9th Cir. 1984) (held BAP constitutional under earlier analysis emphasizing Article III court oversight)
- In re Cardelucci, 285 F.3d 1231 (9th Cir. 2002) (BAP decisions are not binding on Ninth Circuit)
- United States v. Denedo, 556 U.S. 904 (2009) (All Writs Act does not create subject-matter jurisdiction; writs must be in aid of existing jurisdiction)
- Sec. & Exch. Comm’n v. G.C. George Secs., Inc., 637 F.2d 685 (9th Cir. 1980) (district courts have All Writs Act authority and it should be broadly construed)
- Stern v. Marshall, 564 U.S. 462 (2011) (limits on bankruptcy courts entering final judgments on certain claims; separation-of-powers concerns)