OPINION OF THE COURT
GARTH, Circuit Judge.
The appellant, Trans World Airlines, Inc. ("TWA"), appeals from the October 19, 1993 order of the district court granting the Government a stay pending appeal of the September 30, 1993 order of Bankruptcy Court Judge Balick.
TWA filed a voluntary petition for Chapter 11 reorganization on January 31, 1992, putting into immediate effect the automatic stay of 11 U.S.C. § 362.
At the time of its Chapter 11 filing, TWA was a party to an action brought by several airlines against the General Services Administration (GSA) and the United States of America, challenging the legality of GSA's post-payment audits of airline transportation bills. On August 12, 1992, more than six months after TWA filed its voluntary petition, the District Court for the District of Columbia ruled against the GSA in Alaska Airlines, Inc. v. Austin, 801 F.Supp. 760 (D.D.C.1992), aff'd in relevant part, 8 F.3d 791 (Fed.Cir.1993). The Alaska Airlines court ordered the GSA to return to TWA and the other plaintiff airlines all monies improperly withheld by the GSA because of faulty agency post-payment audits of airline services provided by the airlines to federal employees. 801 F.Supp. at 771. The amount GSA owed to TWA was approximately $8.14 million, plus interest.
The Government was unable to obtain a stay pending appeal of the August 12, 1992 order of the Alaska Airlines court. However, the Federal Circuit granted the Government's motion that the GSA deposit the monies it owed TWA into the registry of the bankruptcy court, rather than paying that amount directly to TWA's Trustee. Federal Circuit Judge Rich's April 12, 1993 order to that effect allowed the Government to pursue its setoff defense against TWA by providing that the Alaska Airlines judgment could be distributed to TWA only by order of the bankruptcy court. Pursuant to that order, the GSA deposited $8.36 million into the registry of the Bankruptcy Court for the District of Delaware on May 13, 1993. On that same day, the Government moved before Bankruptcy Court Judge Balick for relief from the automatic stay imposed by 11 U.S.C. § 362, and for an order directing the return to the Government of the $8.36 million in deposited funds as an interagency setoff against the $20 million pre-petition claims of the EPA and the IRS. TWA filed a cross motion seeking payment of the $8.36 million to TWA.
On September 30, 1993, Bankruptcy Court Judge Balick denied the Government's motion for an interagency setoff and granted TWA's cross-motion, directing the immediate release of the Alaska Airlines monies to TWA. Judge Balick's order was premised on the theory that there is no mutuality for setoff purposes between the government agencies (IRS and EPA) that are unsecured creditors of TWA's estate and the government agency (GSA) that is a debtor to TWA's estate. As an independent ground for rejecting the Government's motion for setoff, Judge Balick concluded that setoff would be
After filing its notice of appeal, the Government moved for an automatic ten-day stay of Judge Balick's order directing the release of the $8.36 million to TWA, pursuant to Bankruptcy Rule 7062, which makes Fed. R.Civ.P. 62(a) applicable in adversary proceedings.
Bankruptcy Court Judge Balick agreed with TWA that the Government was not entitled to a discretionary stay under Bankruptcy Rule 8005 because the Government had failed to meet its burden of showing: (1) the likelihood of success on the merits; (2) irreparable harm to the Government; (3) no substantial harm to TWA, and (4) that the public interest weighed against paying the money over to TWA. In a ruling on October 6, 1993, Judge Balick also agreed with TWA's position that the portion of the September 30, 1993 order "directing the clerk to release the funds immediately to TWA" was "a mandatory injunction." [App. at 87.] Judge Balick nonetheless found that Rule 62(a) was applicable. As she explained:
[App. 86-87.] The Government's request for a Rule 62(d) stay as of right pending appeal was never discussed by Judge Balick.
The Government then moved in the District Court for the District of Delaware for a Rule 62(d) stay of the September 30, 1993 order of Bankruptcy Court Judge Balick. Alternatively, the Government argued for a discretionary stay pursuant to Bankruptcy Rule 8005. The district court in its opinion and order of October 19, 1993, never reached the question of whether the Government was entitled to a discretionary stay under Bankruptcy Rule 8005. Ruling that the September 30, 1993 order of Judge Balick was a money judgment, and not a mandatory injunction, the district court held that the Government was entitled to a stay as a matter of right under Rule 62(d). The district court thus concluded that a party appealing a money judgment is entitled to an automatic stay pending appeal upon posting a supersedeas bond, and that the United States, pursuant to Rule 62(e), was entitled to a stay as of right without posting a supersedeas bond.
Issues relating to stays pending appeal in bankruptcy cases are governed by Bankruptcy Rules 7062 and 8005. Bankruptcy Rule 7062 provides that Fed.R.Civ.P. 62 is applicable in adversary proceedings, and Bankruptcy Rule 9014 makes Rule 62 applicable to contested matters,
We are asked in this appeal to determine whether the district court erred in granting the Government a stay pending appeal pursuant to Rule 62(d) without ever considering the discretionary stay provision of Bankruptcy Rule 8005. Specifically, TWA asks us to: (1) reverse the October 19, 1993 order of the district court granting the Government a stay as of right under Rules 62(d) and (e); (2) determine that the Government is not entitled to a discretionary stay under Bankruptcy Rule 8005, and (3) reinstate what TWA continues to characterize as the bankruptcy court's "mandatory injunction" of September 30, 1993, directing immediate disbursement to TWA of the $8.36 million from the registry account.
As discussed above, the Government's appeal of the September 30, 1993 order of
No basis for jurisdiction exists under § 1292(a)(1) because the stay issued by the district court did not modify or dissolve an injunction. As Bankruptcy Judge Balick herself stated, her September 30, 1993 order constituted, in effect, "dual orders." One portion of the September 30, 1993 order denied the Government's motion for relief from the automatic stay of 11 U.S.C. § 362 to set off the Alaska Airlines judgment in favor of TWA against the monies owed by TWA to the IRS and the EPA. The other portion of the September 30, 1993 order granted TWA's cross motion for immediate disbursement of the $8.36 million held in the registry of the bankruptcy court. Although the bankruptcy court's denial of the Government's motion for relief from the automatic stay of 11 U.S.C. § 362 may have been injunctive in nature,
TWA argues, however, that we have § 1292(a)(1) jurisdiction because the disbursement order of the bankruptcy court was a mandatory injunction in that it gave final effect to the injunctive order of the Alaska Airlines court. We reject this view. The proper analysis was applied by District Court Judge Longobardi in his October 19, 1993 order granting the Government a stay pending appeal:
We agree with the district court that the disbursement order was a money judgment. Cf. Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir.1992) (holding that declaratory judgment requiring party to pay a specific sum of money is properly characterized as a money judgment); In re Miranne, 94 B.R. 413, 415 (E.D.La.) (court's judgment is best understood as money judgment for stay purposes when it resolves ultimate issue in dispute of who between appellant and appellee should recover a sum certain of money), aff'd, 861 F.2d 1278 (5th Cir.1988).
District Court Judge Longobardi's conclusion finds further support in the record. Nowhere in the September 30, 1993 order of the bankruptcy court do the words "mandatory injunction" or any variation thereof appear.
Nor are we persuaded by TWA's argument that the September 30, 1993 disbursement order was a mandatory injunction issued by the bankruptcy court against its own clerk. The bankruptcy court had the inherent power to direct disbursement of the monies held in its registry account, as well as all other monies subject to its control. The bankruptcy court in the September 30, 1993 order accordingly directed disbursement of the $8.36 million to TWA. It would be inconceivable to us that, in ordering disbursement of those funds, the bankruptcy court would formally enjoin its own clerk to disburse the monies in its own account, or mandatorily order its clerk to disburse those funds. Even TWA concedes that the notion of the clerk of the bankruptcy court disobeying an order of a bankruptcy court judge seems "unfathomable" and "was not likely to become an issue." (TWA Opening Brief at 25.) Indeed, there is not the slightest suggestion on this record that the clerk of the bankruptcy court was disinclined to surrender the funds held in the bankruptcy registry account, or to comply with any order of the bankruptcy court. As such, we, no more than the district court, could characterize the
We also disagree with TWA's position that the order of the district court granting the Government a stay pending appeal has the practical effect of an injunction, thereby conferring this court with § 1292(a)(1) jurisdiction. The "common thread" connecting this case with those cases in which this court has found § 1292(a)(1) jurisdiction to be lacking is that the October 19, 1993 order of the district court does not grant or deny the ultimate relief sought by the claimant. See United States v. Santtini, 963 F.2d 585, 591 (3d Cir.1992); Cohen v. Board of Trustees of Univ. of Med. and Dentistry, 867 F.2d 1455, 1464 (3d Cir.1989) (en banc) (listing cases). The district court's order granting the Government a Rule 62(d) stay does not decide the ultimate issue in the litigation between TWA and the Government, i.e., whether the Government has a right of interagency setoff against the Alaska Airlines funds. The Rule 62(d) stay instead merely maintains the status quo pending the district court's resolution of the setoff issue raised by the Government in its appeal of the September 30, 1993 order of the bankruptcy court—a separate appeal which is presently pending in the district court.
The district court's order of October 19, 1993, granting a stay pending appeal, does not constitute an order "granting, continuing, modifying, refusing, or dissolving [an] injunction" within the meaning of § 1292(a)(1). See Santtini, 963 F.2d at 590; Bailey v. Systems Innovation, Inc., 852 F.2d 93, 96 (3d Cir.1988). Because the bankruptcy court's disbursement order is indeed a money judgment, and is not injunctive in nature, we are without § 1292(a)(1) jurisdiction to review the district court's October 19, 1993 order staying the September 30, 1993 disbursement order of the bankruptcy court pending disposition of the Government's appeal.
The only other possible basis for jurisdiction of this appeal is 28 U.S.C. § 158(d). By its express terms, § 158(d) confers jurisdiction on this court to hear only final orders entered by district courts in bankruptcy. Connecticut Nat'l Bank v. Germain, ___ U.S. ___, ___ - ___, 112 S.Ct. 1146, 1148-49, 117 L.Ed.2d 391 (1992). This court, however, consistently has recognized that finality must be viewed more pragmatically in bankruptcy appeals under § 158(d) than in other contexts. See, e.g., Nicolet, 857 F.2d at 205; Wheeling-Pittsburgh Steel Corp. v. McCune, 836 F.2d 153, 157 (3d Cir.1987); In re Amatex Corp., 755 F.2d 1034, 1039 (3d Cir.1985).
TWA contends that this court has § 158(d) jurisdiction because the discrete issues raised by this appeal are "peculiar to bankruptcy," thereby militating in favor of the exercise of this court's jurisdiction and a decision on the merits. See Nicolet, 857 F.2d at 207. As framed by TWA, the issues "peculiar to bankruptcy" are:
Because these same issues are likely to arise again, TWA argues that judicial economy favors establishing a controlling precedent in this appeal. We cannot agree.
Whether Bankruptcy Rule 7062 (which makes Fed.R.Civ.P. 62 applicable in bankruptcy cases) is trumped by Bankruptcy Rule 8005 (which gives the bankruptcy court discretion to grant a discretionary stay "[n]otwithstanding Rule 7062") is an issue that was neither discussed nor decided by the district court. Nor must we decide that issue at this posture of the case. TWA's fundamental objection is its inability to have immediate access to the Alaska Airlines funds. From TWA's perspective, it is irrelevant whether it is a Rule 62(d) stay of right or a Bankruptcy Rule 8005 discretionary stay which should not be granted, so long as there is no impediment
Whether the resources sought by TWA in the instant appeal are rightfully TWA's, however, is an issue yet to be decided by the district court. If we were to decide the merits of this appeal, we would be bypassing the district court, which in the first instance must determine whether TWA is entitled to the $8.36 million paid into the registry account by the GSA, or whether the Government can set off that amount against the unsecured claims of other federal agencies. This critical fact distinguishes this case from other cases in which we have relaxed the finality requirement in bankruptcy appeals. Unlike the circumstances, for example, of Nicolet, 857 F.2d 202, and In re Comer, 716 F.2d 168 (3d Cir.1983), the challenged order of the district court does not fully adjudicate a specific adversary proceeding between the parties. To the contrary, the district court's ruling that the bankruptcy court's September 30, 1993 disbursement order was a "money judgment," and not a mandatory injunction, ensured continuation of the controversy, i.e., preserving the issue of whether the Government is entitled to set off the $8.36 million now in the registry account against the claims of the Government agencies.
Even under the most relaxed concept of finality, the October 19, 1993 order of the district court granting the Government a Rule 62(d) stay pending appeal cannot be viewed as the equivalent of a final order. Compare In re Amatex Corp., 755 F.2d at 1041 (holding that order denying representation to class of future claimants in bankruptcy proceeding is equivalent to denial of request to intervene, and order denying right to intervene is appealable final order). An order granting a stay pending appeal is usually not appealable. See, e.g., Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 735 (3d Cir.1983). An exception exists in the bankruptcy context only where an "indefinite stay order unreasonably delays a plaintiff's right to have his case heard." Wheeling-Pittsburgh, 836 F.2d at 158 (citation and internal quotation marks omitted); see also Haberern v. Lehigh & New England Ry. Co., 554 F.2d 581, 584 (3d Cir.1977) (indefinite stay order appealable where delay so prolonged that "in a very practical sense the stay order is a final one").
We do not believe that this case is "`rife with special circumstances which bring it outside the general rule and so limit its precedential value as to not measurably weaken our continued aversion to piecemeal appeals.'" Wheeling-Pittsburgh, 836 F.2d at 158 (quoting Haberern, 554 F.2d at 584). The district court's October 19, 1993 stay order does not unreasonably delay TWA's right to a final decision on the disbursement of the Alaska Airlines funds. The Government's appeal before the district court apparently is moving forward.
Until such time as the setoff issue is finally resolved by the district court, we are without jurisdiction to review the claims TWA raises in the instant appeal. We can foresee that once the district court decides the setoff issue, § 158(d) jurisdiction might well vest in this court for one of two reasons: either (1) interagency setoff will be allowed and the
At this stage of the proceedings, however, we are without § 158(d) jurisdiction. The record simply does not support TWA's claim that the issues raised here are effectively unreviewable on appeal from a final judgment. There is no evidence of record on the "deleterious impact of the October 19 Order on TWA's estate," claimed by TWA to be "substantial and irreparable."
We, therefore, hold that we lack appellate jurisdiction under either § 1292(a)(1) or § 158(d) to consider TWA's appeal of the October 19, 1993 order of the district court granting the Government a stay pending appeal of the bankruptcy court's September 30, 1993 order. Here, "`the general congressional policy against piecemeal review preclude[s] interlocutory appeal.'" See United States v. RMI Co., 661 F.2d 279, 281 (3d Cir.1981) (quoting Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 997, 67 L.Ed.2d 59 (1980)).
TWA will bear the costs of this appeal.
We express no opinion respecting Judge Balick's ruling as the setoff issue is not before us on appeal.
Rule 62(a) in relevant part provides:
Rule 62(e) excepts the Government from having to furnish a supersedeas bond. See, infra, note 7.
Bankruptcy Rule 8005, by its terms, provides the bankruptcy court with substantially broader discretion than afforded a court by Rule 62. Bankruptcy Rule 8005 in pertinent part provides:
Pursuant to 28 U.S.C. § 158(d), the courts of appeal have jurisdiction over appeals from "all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section." Id. Subsection (a) gives the district courts authority to hear appeals from final and interlocutory orders of the bankruptcy courts. Id. § 158(a). Subsection (b), which permits the judicial council of any circuit to establish a bankruptcy appellate panel, is not applicable here. Id. § 158(b).
That TWA may have to borrow funds for capital improvements hardly constitutes the type of irreparable harm that would require this court, at this stage of the proceedings, to address the propriety of withholding the funds against which the Government has asserted a right of setoff— the very issue still undecided and now before the district court.