IN RE Gary Lawrence OZENNE, Debtor, Gary Lawrence Ozenne, Petitioner-Appellant, v. Chase Manhattan Bank; Ocwen Loan Servicing; Ocwen Federal Bank FSB, Respondents-Appellees.
No. 11-60039
United States Court of Appeals, Ninth Circuit.
November 9, 2016
841 F.3d 810
San Francisco, California
Filed November 9, 2016
* The panel unanimously concludes this case is suitable for decision without oral argument. See
Jeffrey S. Allison and Eric D. Houser, Houser & Allison, Irvine, California, for Respondents-Appellees.
Thomas R. Phinney, President, Sacramento, California, as and for Amicus Curiae California Bankruptcy Forum.
Paulette Brown, President, American Bar Association, Chicago, Illinois; Ahmed R. Jinnah and Samuel R. Maizel, Dentons US LLP, Los Angeles, California; for Amicus Curiae American Bar Association.
John A.E. Pottow, University of Michigan Law School, Ann Arbor, Michigan, for Amicus Curiae John A. E. Pottow.
OPINION
N.R. SMITH, Circuit Judge:
This matter comes before the en banc court on an appeal, filed by Gary Ozenne, from the Ninth Circuit Bankruptcy Appellate Panel (“BAP“). The BAP determined that it had jurisdiction to hear Ozenne‘s petition for a writ of mandamus and then denied the petition. However, the BAP did not have jurisdiction to hear Ozenne‘s petition. Mandamus was not available to Ozenne because he filed the petition as a substitute for filing the timely appeal required by the Federal Rules of Bankruptcy Procedure. Ozenne‘s failure to file a timely appeal jurisdictionally barred the BAP from considering the petition for writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ozenne‘s Initial Bankruptcy Petition
The history of this litigation is lengthy. This case—Ozenne‘s fifth chapter 13 bankruptcy—was filed on May 17, 2001, in the United States Bankruptcy Court for the Central District of California. At that time, Chase Manhattan Bank, Ocwen Loan Servicing, and Ocwen Federal Bank FSB (“the Financial Institutions“) held and/or serviced a mortgage on Ozenne‘s home, and they were scheduled to foreclose on the mortgage on May 17, 2001. However, Ozenne filed for bankruptcy that same day in an attempt to stop the foreclosure. Ozenne was unable to make his scheduled payments under this fifth chapter 13 plan. Thus, on a motion to dismiss filed by the trustee, the bankruptcy court dismissed the case in March 2002. Ozenne filed for chapter 13 bankruptcy at least two more times, and both cases were dismissed. The Financial Institutions finally successfully foreclosed on Ozenne‘s mortgage on July 31, 2002.
B. Ozenne‘s First Attempt to Reopen the Case
In February 2003, Ozenne filed a motion in the bankruptcy court to reopen this fifth bankruptcy. Ozenne alleged that his creditors sold his residence unlawfully in violation of an automatic stay. The bankruptcy court denied the motion on March 28, 2003. The United States District Court for the Central District of California affirmed on August 5, 2003. We affirmed on June 24, 2005, Ozenne v. Chase Manhattan Bank (In re Ozenne), 137 Fed.Appx. 62 (9th Cir. 2005) (unpublished), and the Supreme Court denied certiorari, Ozenne v. Chase Manhattan Bank, 546 U.S. 1178, 126 S.Ct. 1350, 164 L.Ed.2d 62 (2006).
C. Ozenne‘s Second Attempt to Reopen the Case
In April 2007, Ozenne filed another motion in the bankruptcy court. This time he sought to set aside the bankruptcy court‘s judgment under
D. Ozenne‘s Third Attempt to Reopen the Case
On November 13, 2009, Ozenne filed another motion for sanctions with the bankruptcy court for violations of
Ozenne never appealed this denial. Instead, on May 2, 2011, he filed a petition for writ of mandamus with the BAP, asking the BAP to order the bankruptcy court to hold a trial or hearing on the alleged
The Financial Institutions claim they received no notice of the petition, the BAP‘s decision, or the appeal. When the Financial Institutions had not filed a response by October 24, 2012, this court issued a notice, informing them that they had fourteen days to file an answering brief. Despite this notice, the Financial Institutions did not appear until August of 2015. After allowing the Financial Institutions to file a late brief, a three-judge panel issued an opinion on March 25, 2016, vacating the BAP‘s order. The majority held that the BAP lacked jurisdiction under the All Writs Act, because the BAP, established by the circuit judicial council pursuant to
Thereafter, we asked the parties to submit briefs as to whether the case should be heard en banc. A majority of non-recused active judges ultimately voted to rehear the case en banc.3
We have jurisdiction to hear Ozenne‘s appeal from the BAP. See
Generally, a federal court must first determine whether it has jurisdiction before reaching the merits of a case. Sinochem Int‘l Co. v. Malaysia Int‘l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). On appeal, the appellant has the burden of establishing that the appellate court has jurisdiction to hear the case. Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016). The deadline to file an appeal is “mandatory and jurisdictional.” Browder v. Dir., Dep‘t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (internal quotation marks and citation omitted); see also Melendres, 815 F.3d at 649 (“[W]e are not at liberty to overlook a defect with the notice of appeal no matter how compelling an appellant‘s argument may be.“). This rule also applies to federal bankruptcy appeals. Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 327-28 (9th Cir. 1994) (“[T]he untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court‘s order.“).
A party to a bankruptcy proceeding has fourteen days to appeal a bankruptcy judge‘s order.
Instead of filing a timely appeal, Ozenne filed a mandamus petition with the BAP on May 2, 2011. Ozenne‘s petition sought “an order from [the BAP] ordering a trial or hearing for the violations of law under
We acknowledge that “a federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.‘” Sinochem, 549 U.S. at 431 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). However, as a “fundamental rule of judicial restraint,” we “must consider nonconstitutional grounds for decision” before “reaching any constitutional questions.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (citations and internal quotation marks omitted). Accordingly, we must first address whether the BAP had jurisdiction to hear Ozenne‘s appeal as a matter of procedure and only reach the constitutional question of whether the BAP had jurisdiction to hear Ozenne‘s appeal under the All Writs Act if we determine there is no procedural bar.
Finally, a writ of mandamus could not issue. The writ of mandamus is “one of the most potent weapons in the judicial arsenal.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)). Accordingly, three conditions must be present before a writ of mandamus may issue. Id. “First, ‘the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.‘” Id. (alteration in original) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). Second, the petitioner‘s right to issuance of the writ must be “clear and indisputable.” Id. at 381 (quoting Kerr, 426 U.S. at 403). “Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. (citation omitted). The Ninth Circuit has also articulated the following five factors, laid out in Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977), in determining whether mandamus relief is appropriate:
(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correct-
United States v. U.S. Dist. Court for Dist. of Nev. (In re United States), 791 F.3d 945, 955 & n.7 (9th Cir. 2015) (quoting Bauman, 557 F.2d at 654-55).
Although Ozenne fails to satisfy any of the conditions for mandamus relief, we need only discuss the first condition in determining whether a writ could issue: The party seeking issuance of the writ must have no other adequate means to attain the desired relief. The first condition is “designed to ensure that the writ will not be used as a substitute for the regular appeals process.” Cheney, 542 U.S. at 380-81 (citing Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)). Because appellate review of the bankruptcy court‘s order dismissing the motion for sanctions was available to Ozenne, a writ of mandamus granting him relief from that order could not issue.
CONCLUSION
Ozenne could have appealed the bankruptcy court‘s January 2011 decision. But he did not. Instead Ozenne waited for the notice of appeal deadline to pass and then filed a mandamus petition seeking precisely the same relief he would have sought in an appeal. In effect, then, despite its label, the petition was an untimely appeal. The BAP would not have had jurisdiction to consider the untimely appeal. See In re Mouradick, 13 F.3d at 327. As a writ of mandamus cannot substitute for a timely appeal, the BAP also did not have jurisdiction to consider the appeal labeled as a mandamus petition. See Calderon, 137 F.3d at 1422; Diamond, 661 F.2d at 1198. Ozenne will not be permitted to use mandamus to circumvent the jurisdictional requirement that he file a timely appeal. The BAP should have dismissed the petition for that reason.5
We vacate the BAP‘s May 20, 2011, Order and remand the case with instruction to dismiss the petition for lack of jurisdiction. Parties shall bear their own costs for the appeal.
VACATED and REMANDED.