841 F.3d 810
9th Cir.2016Background
- Gary Ozenne filed his fifth Chapter 13 bankruptcy on May 17, 2001 to stop foreclosure; that and subsequent bankruptcies were dismissed and the mortgage was foreclosed in July 2002.
- Ozenne filed multiple post-judgment motions (to reopen, Rule 60 relief, and sanctions) alleging violations of the automatic stay under 11 U.S.C. § 362; the bankruptcy court repeatedly returned or denied these motions for lack of jurisdiction because the case was closed.
- Ozenne did not file a timely appeal from the bankruptcy court’s January 27, 2011 order denying jurisdiction over his sanctions motion; instead he filed a mandamus petition with the Bankruptcy Appellate Panel (BAP) on May 2, 2011 seeking an order requiring a hearing on § 362 violations.
- The BAP assumed it had authority and denied the mandamus petition on the merits on May 20, 2011; Ozenne appealed to the Ninth Circuit.
- A Ninth Circuit panel later vacated the BAP’s order on jurisdictional grounds under the All Writs Act; the en banc court reheard the matter and considered whether the BAP had jurisdiction to entertain Ozenne’s mandamus petition when he had not filed a timely appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus can substitute for a timely appeal of a bankruptcy court order | Ozenne sought mandamus to obtain the hearing and relief he claimed the bankruptcy court wrongfully denied | Financial Institutions argued mandamus cannot replace the mandatory, jurisdictional appeal process and BAP lacked jurisdiction | Mandamus cannot substitute for a timely appeal; because Ozenne failed to appeal within the rule-based deadline, the BAP lacked jurisdiction and should have dismissed the petition |
| Whether the BAP had jurisdiction to hear Ozenne’s petition despite untimely appeal | Ozenne characterized his filing as a mandamus petition invoking BAP authority | Respondents maintained that an available ordinary appeal precluded mandamus and that filing after the deadline deprived BAP of jurisdiction | BAP lacked jurisdiction to consider the petition; a party with available appeal remedies cannot obtain relief by mandamus after appeal time has lapsed |
| Whether Ozenne had any other adequate means to obtain relief (first Kerr/Cheney factor) | Ozenne asserted need for relief based on alleged stay violations | Respondents pointed out Ozenne could and should have filed a timely notice of appeal or a timely motion to extend the appeal deadline | Court held Ozenne had an adequate remedy by appeal and failed to seek timely extension; thus the first prerequisite for mandamus was not met |
| Whether the writ was appropriate under Bauman factors (practical availability of mandamus) | Ozenne argued extraordinary relief was warranted for alleged § 362 violations | Respondents argued Bauman factors were not satisfied (availability of appeal, no clear legal error, etc.) | Court found Bauman factors unmet and refused to allow mandamus as a substitute for appeal; vacated BAP order and remanded with instructions to dismiss for lack of jurisdiction |
Key Cases Cited
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (court may choose threshold grounds including jurisdiction)
- Browder v. Dir., Dep’t of Corr., 434 U.S. 257 (appeal deadlines are mandatory and jurisdictional)
- Calderon v. U.S. Dist. Court for Cent. Dist. of Cal., 137 F.3d 1420 (mandamus unavailable where ordinary appeal was possible)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (three-pronged test for issuing mandamus)
- Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394 (mandamus prerequisite: no other adequate means)
- Diamond v. U.S. Dist. Court for Cent. Dist. of Cal., 661 F.2d 1198 (mandamus cannot substitute for direct appeal)
- Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1 (availability of ordinary appeal bars mandamus relief)
- In re Mouradick, 13 F.3d 326 (untimely notice of appeal deprives appellate court of jurisdiction)
- Bauman v. U.S. District Court, 557 F.2d 650 (factors for evaluating mandamus requests)
- United States v. U.S. Dist. Court for Dist. of Nev. (In re United States), 791 F.3d 945 (discussing Bauman factors in mandamus context)