NETSPHERE, INCORPORATED, et al., Plaintiffs v. Jeffrey BARON, Defendant-Appellant. Quantec L.L.C.; Novo Point, L.L.C., Movants-Appellants v. Peter S. Vogel, Appellee. Netsphere, Incorporated, et al., Plaintiffs v. Jeffrey Baron, Defendant-Appellant. Quantec L.L.C.; Novo Point, L.L.C., Movants-Appellants v. Gardere Wynne Sewell, L.L.P.; Peter S. Vogel, Appellees.
Nos. 13-10119, 13-10696
United States Court of Appeals, Fifth Circuit
Aug. 14, 2015
799 F.3d 327
Christopher D. Kratovil, Esq., Alison R. Ashmore, Attorney (argued), Jeffrey R. Fine, David John Schenck, Attorney, Dykema Cox Smith, Richard M. Roberson, Gardere Wynne Sewell, L.L.P., Dallas, TX, for Appellees.
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
As a general rule, the courts of appeals have jurisdiction only over the final decisions of the district courts. There are certain exceptions and qualifications to that principle, however. In this case we must decide whether any of them allow us to review several district court orders which, pursuant to the mandate of an earlier decision of our court, awarded fees to a receiver before final judgment had been entered. Concluding that none apply, we dismiss for want of appellate jurisdiction.
I.
We set out the tangled factual and procedural history of this long-running case in our earlier opinion.1 We summarize briefly now.
This case began back in the spring of 2009, as a contractual dispute between Netsphere, Inc., and Jeffrey Baron.2 As the litigation ensued, one of Baron‘s companies, Ondova Limited Company, declared bankruptcy, automatically staying the district court action. During this stage of the case, as in earlier proceedings, Baron repeatedly hired and fired his lawyers.3 “The bankruptcy creditors and Ondova eventually agreed to a settlement, but Baron continued to hire new lawyers. Many of the lawyers claimed they had not been paid and began to file claims for legal fees in the bankruptcy proceeding.”4 As proceedings continued, both the bankruptcy court and the bankruptcy trustee became increasingly concerned over Baron‘s fail-
Baron appealed the district court‘s order appointing the receiver. In Netsphere v. Baron, Inc. (”Netsphere I“) we reversed, holding that the district court had “no authority to ... establish[ ] a receivership” in order “to control Baron‘s hiring, firing, and non-payment of numerous attorneys.”7 We next turned to the question of who should bear the costs expended by the improper receivership. We held that our “precedents establish that equity controls when addressing the costs created by an improper receivership.”8 Because “the record support[ed] that the circumstances that led to the appointment of a receiver were primarily of Baron‘s own making,” we ruled that “charging the current receivership fund for reasonable receivership expenses, without allowing any additional assets to be sold, is an equitable solution.”9
On remand, in addition to awarding new fees, we also ordered the district court to reconsider all receivership fees and expenses it had previously ordered to be paid. We reasoned that these “[f]ees already paid were calculated on the basis that the receivership was proper” but “[i]n light of our ruling that the receivership was improper, equity may well require the fees to be discounted meaningfully from what would have been reasonable under a proper receivership.”10
Before the Netsphere I mandate issued, the district court entered several orders approving interim fee applications submitted by the receiver and its counsel. After the mandate issued, and the case was remanded, the district court then entered an order reconsidering the fees it had previously awarded to the receiver, its counsel, and the Ondova bankruptcy trustee. It also authorized new payments to the receiver and to one of its counsel, Dykema Gossett PLLC.
These appeals of the various fee orders follow.11
II.
Both sides implore us to decide this appeal. While we sympathize with their desire for resolution, we lack the power to do so.
There are two potential avenues for appellate jurisdiction absent a final decision of the district court: one based in statute, one in federal common law. Neither has purchase in this case.
A.
In
[T]he courts of appeals shall have jurisdiction of appeals from: [i]nterlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property.16
It is undisputed that the challenged fee orders are not “orders appointing receivers.” Nor did the district court “refus[e] orders to wind up receiverships.” Just the opposite, in fact: the fee orders were issued as a necessary step to comply with our court‘s mandate that receivership fees be awarded and the receivership wound up.17
The closer question, however, is whether the phrase “take steps to accomplish the purposes thereof” vests us with jurisdiction to review a fee order issued in compliance with an earlier appellate directive to wind-up the receivership. We conclude that it does not.
Turning first to the text of section 1292(a)(2), the statute grants us jurisdiction only over “orders ... refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property.”18 While not a model of clarity, seen in context, there are two ways to read these words. One “interpret[s] this provision as permitting appeals from orders ‘to take steps to accomplish the purposes [of winding up receiverships],‘” and the other constructs the language to “permit[] appeals only from orders ‘refusing ... to take steps to accomplish the purposes of [winding up receiverships].‘”19 We agree
Second, both our court and our sister circuits have long concluded that orders directing the payment of monies or the transfer of property to receivers and their professionals are unreviewable under section 1292(a)(2).23 We have also refused to find jurisdiction over other orders issued in the course of a receivership, such as authorizing the execution of a lease by a receiver.24 So have our sister circuits.25
Third, as a matter of policy, this interpretation makes good sense. As we recognized in Warren v. Bergeron,26 the imposition of a receivership visits significant consequences: “To put a corporation or other entity into receivership is to wrest management and control from those entrusted by the owners, replacing them with a court-appointed trustee under court supervision. Because this action may cause great harm, Congress decided to make interlocutory orders appointing receivers appealable.”27 Orders entered in the normal course of a receivership do not visit such consequences. Moreover, to conclude otherwise would mean that “virtually any order of the receiver within the scope of its jurisdiction would be potentially appealable.”28 Such a piecemeal approach to the appellate process would be disruptive and costly, both to the parties
While we believe this textual reading is best, there is one wrinkle, in the form of precedent from our court that could be read to come out the other way. In United States v. “A” Manufacturing Co., Inc., we addressed the question of whether an order by a receiver confirming a sale after the fact is appealable under section 1292(a)(2).30 We said it was, relying mainly on cases interpreting the final-judgment doctrine.31 But in doing so, we used expansive language to describe section 1292(a)(2), saying it “provides for appeals from interlocutory orders which take steps to accomplish the purpose of receiverships such as directing the sale or disposal of property.”32 This language arguably conflicts with the reading of section 1292(a)(2) we have just put forward. Even still, we conclude that this language does not require us to hold we have jurisdiction to review receivership fee orders issued as part of a court-mandated wind-down process.
First, that sentence in “A” Manufacturing is likely dicta. While “[i]t is well-established in this circuit that one panel of this Court may not overrule another,” that rule does not apply to dicta.33
A statement is dictum if it could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it. A statement is not dictum if it is necessary to the result or constitutes an explication of the governing rules of law.34
“A” Manufacturing‘s holding—that orders confirming a sale are immediately appealable—was based on its interpretation of three cases that, pursuant to an entirely different jurisprudential line, had held that orders confirming sales were immediately appealable.35 That holding was not based on the language of section 1292(a)(2),36 and so “A” Manufacturing‘s discussion of that provision could be removed without hin-
Next, even assuming that “A” Manufacturing‘s statement that the courts of appeals have jurisdiction over “interlocutory orders which take steps to accomplish the purpose of receiverships” was holding, that decision conflicts with other, previous panel decisions that held such interlocutory orders were not appealable. In Belleair Hotel Co. v. Mabry,37 a 1940 decision interpreting an earlier (but nearly identically phrased) version of section 1292(a)(2),38 we concluded that a district court order authorizing a receiver to lease a piece of property was not immediately appealable.39 In doing so, we held that:
An examination of the statute just cited discloses no authorization of an appeal from an order of the kind under review. It makes provision for appeals from interlocutory orders refusing to take appropriate steps to wind up a pending receivership, such as directing a sale or other disposal of the property, but we have no such order before us. In this case, the court has not refused an order to wind up the receivership or to take appropriate steps to that end.40
Similarly, in Wark v. Spinuzzi, which also predates “A” Manufacturing, we held that an interlocutory order “requiring appellants to turn over certain bonds to the Receiver” was not reviewable under section 1292(a)(2).41 The reasoning and holding of both cases, concluding that interlocutory orders which do not refuse orders to wind-down a receivership are not reviewable, conflict with “A” Manufacturing. “The rule in this circuit is that where two previous holdings or lines of precedent conflict the earlier opinion controls and is the binding precedent in this circuit.”42
We hold that
B.
A second potential avenue for appellate jurisdiction is the collateral order doctrine. It does not avail. This rule, which emerged from the Supreme Court‘s decision in Cohen v. Beneficial Industrial Loan Corporation,43 “is best understood not as an exception to the final decision rule laid down by Congress in
The fee orders satisfy the first two Cohen criteria, but not the third. Looking at the first factor, an order is “conclusive” if it is “not subject to later review or revision in the district court. The mere power to revisit an order, however, is insufficient to preclude a finding of conclusivity; it should be unlikely that the district court will revisit the order.”46 By this light, the district court‘s fee orders, which did not contemplate revision or modification, are conclusive. The second criteria is whether the fee orders “resolve[ ] an issue completely separate from the merits of the case,”47 or whether they “generally involve[] considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff‘s cause of action.‘”48 The orders are adequately separate: the underlying merits of the initial cause of action, a breach of contract dispute, are far removed from the propriety of the fee orders issued as part of a mandated receivership wind-up.
It is on the reviewability element that the orders run aground, a requirement we have “held ... to be the fundamental characteristic of the collateral order doctrine.”49 Here, we look to whether it would be possible to review the fee orders after final judgment has been entered.50 We have not squarely considered the question of whether an order paying receiver fees is effectively reviewable after judgment. We have, however, repeatedly considered whether a district court‘s interim (i.e., pre-final judgment) award of attorney‘s fees is reviewable under Cohen. It is not, we have “consistently held,” “because the fee award is effectively reviewable after final judgment on the merits of the case is entered.”51 This logic applies equally to receiver fee awards.
While we have announced several exceptions to this pre-final judgment fee rule, none apply here. In Ruiz v. Estelle, for example, we suggested that an award might be reviewable “if the defendant had alleged and proved that the mere payment of the fees would make them unrecoverable.”52 “Such a situation might arise, for instance, if the fees were to be paid directly to a client in danger of becoming judgment-proof.”53 It might also arise if awards “will be distributed to potentially thousands of claimants,” leaving the defendant “no practical way of recovering these
We hold that that collateral order doctrine does not provide a basis for appellate jurisdiction.
III.
We DISMISS this appeal for want of appellate jurisdiction.