John E. Burns Drilling Company ("Burns Drilling") filed a Chapter 11
On January 20, 1983, Central Bank filed a motion to dismiss, challenging the bankruptcy court's jurisdiction. The bankruptcy
On February 28, 1983, Central Bank moved the district court for leave to appeal the bankruptcy court's denial of the motion to dismiss. After a hearing, the district court denied the application for permission to appeal.
Central Bank has filed two related proceedings in this court seeking review of the bankruptcy court's denial of the motion to dismiss. In Misc. No. 83-8023, Central Bank asserts that we have jurisdiction to hear its appeal under 28 U.S.C. §§ 1291 or 1293, and under Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). In No. 83-1837, Central Bank seeks a writ of mandamus or a writ of prohibition to compel Chief Judge Brimmer and Judge Kerr to withdraw the Referral Order, to "accept and review" Central Bank's application for leave to appeal the bankruptcy court's interlocutory order denying the motion to dismiss, or to refrain from exercising jurisdiction over Central Bank in the bankruptcy proceeding.
We conclude that we lack jurisdiction to hear an interlocutory appeal in Misc. No. 83-8023. In No. 83-1837, we are persuaded that the petitioner has not shown that the bankruptcy court lacks jurisdiction and we deny the writ.
Misc. No. 83-8023: Interlocutory Appeal
We lack jurisdiction to review the bankruptcy court's denial of Central Bank's motion to dismiss. Jurisdiction can not be based on §§ 1291
Moreover, the bankruptcy court's denial of the motion to dismiss does not fit within the "collateral order" exception. Under this doctrine, first applied by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), a certain "small class" of decisions may be excepted from the final judgment requirement. To qualify as a collateral order subject to immediate appellate review, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment."
We must conclude that the bankruptcy court's denial of Central Bank's motion to dismiss lacks the third component of the collateral order doctrine because the order may be effectively reviewed on appeal from a final judgment in the bankruptcy proceeding. Cf. Evilsizor v. Eagle-Picher Industries, Inc., 725 F.2d 97, 98-99 (10th Cir.1984) (district court's denial of defendants' motion to stay diversity action pending resolution of bankruptcy proceedings involving other defendants who were granted automatic stay of diversity action pursuant to 11 U.S.C. § 362(a) failed third prong of collateral order test); Jesko v. United States, 713 F.2d 565, 567-68 (10th Cir.1983) (district court's order transferring case to court of claims lacked third component of collateral order doctrine); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1325 (10th Cir.1978) (district court's order adding new party defendant failed third part of collateral order test because court "will be able to completely review the joinder order if appeal is taken from any final judgment").
No. 83-1837: Petition for Extraordinary Writ
In No. 83-1837, Central Bank requests that we issue a writ of mandamus or prohibition directing Chief Judge Brimmer and Judge Kerr to withdraw the Referral Order, to accept Central Bank's application for leave to appeal the bankruptcy court's interlocutory order denying the motion to dismiss, or to refrain from exercising jurisdiction over Central Bank in the bankruptcy proceeding.
Under the All Writs Act, "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The Supreme Court has recognized that the writ of mandamus "has traditionally been used in the federal courts only `to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so.'" Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). The Court has emphasized that "the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam).
Mandamus may not be used as a substitute for appeal. See, e.g., Will, supra, 389 U.S. at 97, 88 S.Ct. at 274; In re Grand Jury Proceedings, 723 F.2d 1461, 1466-67 (10th Cir.1983); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir.1978). A writ of mandamus will not be issued unless the petitioner demonstrates that no other adequate relief is available and that his right to the writ is "clear and indisputable." Allied Chemical Corp., supra, 449 U.S. at 35-36, 101 S.Ct. at 190-91; Will, supra, 389 U.S. at 96, 88 S.Ct. at 274; In re Dalton, 733 F.2d 710, 716 (10th Cir.1984);
We are convinced that Central Bank's jurisdictional challenge does not justify mandamus relief. Central Bank challenges the jurisdiction of the bankruptcy court under the Referral Order and of the district court in these bankruptcy proceedings under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion). In Matter of Colorado Energy Supply, Inc., 728 F.2d 1283 (10th Cir.1984), we rejected a similar jurisdictional challenge. We stated that the holding in Marathon is "quite limited" and requires only that "related proceedings" in bankruptcy must be adjudicated by Article III courts or by State courts.
The proceeding here arises directly out of Title 11. Burns Drilling filed a complaint to avoid or to subordinate Central Bank's security interest under 11 U.S.C. § 544(a), and alternatively to recover a preferential transfer pursuant to 11 U.S.C. § 547(b). Central Bank's challenge to the bankruptcy court's jurisdiction therefore fails because the case does not involve jurisdiction to hear a state common-law action such as that challenged in Marathon. See Colorado Energy Supply, supra, 728 F.2d at 1286 (creditor's claim that rent is allowable cost of sale, and not merely 11 U.S.C. § 503 claim, is "not a traditional state common-law claim, and is thus not a related proceeding within the meaning of Marathon").
Central Bank's challenge to the district court's Referral Order also is unpersuasive. The Referral Order provides that a bankruptcy judge may not enter a judgment or dispositive order in "related proceedings" unless the parties consent. The definition of related proceedings includes "civil proceedings that, in the absence of a petition in bankruptcy, could have been brought in a district court or a state court." Related proceedings do not include, among other things, "contested and uncontested matters concerning the administration of the estate." In Colorado Energy Supply, supra, we upheld identical provisions of the Interim Operating Rules of the District of Colorado. See 728 F.2d at 1286-87. See also Oklahoma Health Services Federal Credit Union v. Webb, 726 F.2d 624, 625-26 (10th Cir.1984). We similarly must reject Central Bank's challenge to the Referral Order here.
Accordingly, in No. 83-1837 we hold that the petitioner has failed to establish its right to mandamus or prohibition relief and we therefore deny the writ.
Section 1293(b) changes the rules as to the appealability of bankruptcy court orders under the new bankruptcy code. Under the former bankruptcy act, certain interlocutory orders were appealable to the court of appeals under 11 U.S.C. § 47(a) (1976). Under that section, orders in "proceedings in bankruptcy" were appealable whether they were interlocutory or final. Orders in "controversies arising in proceedings in bankruptcy," on the other hand, were appealable only if they were final or were certified under § 1292(b). See generally 16 C. Wright, A. Miller, E. Cooper & E. Grossman, Federal Practice and Procedure § 3926, at 103-04 & n. 13 (1977). Section 1293(b), the current bankruptcy provision, eliminates this distinction between "proceedings" and "controversies" and permits direct appeal from the bankruptcy court to the court of appeals only with respect to final orders and with the consent of the parties. See generally id. at 40 (West Supp.1984).
In evaluating Gillespie, we have said that "we read subsequent Supreme Court cases as taking a restrictive view." Evilsizor v. Eagle-Picher Industries, Inc., 725 F.2d 97, 98 (10th Cir.1984); see also Daiflon, Inc. v. Bohanon, 612 F.2d 1249, 1252 & n. 5 (10th Cir.1979), rev'd on other grounds sub nom. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). In Coopers & Lybrand, supra, the Court emphasized that "[i]f Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance." 437 U.S. at 477 n. 30, 98 S.Ct. at 2462 n. 30.
733 F.2d at 717.