Chorney v. Eastland Bank ( 1993 )

February 5, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 92-1780
92-1781
92-1782
HAROLD F. CHORNEY,
Appellant,
v.
EASTLAND BANK,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
Harold F. Chorney on brief pro se.
Michael A. Silverstein, Sheryl Serreze, Michelle A. Ruberto
and Hinckley, Allen, Snyder & Comen on Memorandum of Law in
Support of Motion for Summary Affirmance for appellee.
Per Curiam. We have consolidated three appeals from
adverse orders in a bankruptcy proceeding in which the debtor
is Cumberland Investment Corporation. Appellant, Harold
Chorney, was a principal of the debtor. Appellee, Eastland
Bank ("Eastland") is the principal secured creditor.
One appeal challenges the bankruptcy court's order of
January 17, 1991, denying Chorney's demand for a jury in a
civil contempt action. Another appeal challenges the
bankruptcy court's July 3, 1991 denial of Chorney's motion to
hold the examiner in contempt. The third appeal challenges
the bankruptcy judge's August 14, 1991 denial of Chorney's
motion that the judge disqualify himself from the case.
The district court granted leave to appeal pursuant to
its discretion to do so under 28 U.S.C. 158(a). It
affirmed all three bankruptcy court orders, and this appeal
followed.
Although the parties have not raised the issue, "this
court has an obligation to inquire sua sponte into its
subject matter jurisdiction." In re Recticel Foam Corp., 859
F.2d 1000, 1002 (1st Cir. 1988). Finding no jurisdiction
over these interlocutory appeals, we must dismiss.
Appeal to this court of interlocutory orders in
bankruptcy is not permitted by 158, which grants to courts
of appeals jurisdiction only over appeals from final
decisions, orders, and decrees. 28 U.S.C. 158(d); see In
re American Colonial Broadcasting Corp., 758 F.2d 794, 800
(1st Cir. 1985). Because of the flexible interpretation
accorded "finality" in bankruptcy cases, this court has not
ruled out the possibility that a unique case might arise in
which a district court's appellate decision under 158(a)
might be final for purposes of appeal to this court under
158(d), despite the interlocutory nature of the underlying
bankruptcy order. See In re G.S.F. Corp., 938 F.2d 1467,
1473 (1st Cir. 1991). But this is not such an unusual case.
The orders challenged here involved interim procedural
steps affecting only the manner in which further proceedings
on the merits would be conducted. They did not conclusively
determine a "separable dispute over a creditor's claim or
priority," nor leave only "ministerial" tasks to be
accomplished in any separable judicial unit or proceeding.
In re Saco Local Dev. Corp., 711 F.2d 441, 445-46 (1st Cir.
1983); see also Tringali v. Hathaway Mach. Co., 796 F.2d 553(1st Cir. 1986). Nor did the district court's orders
terminate the federal courts' involvement in the entire case,
or any significant aspect of it. In re G.S.F. Corp., 938
F.2d at 1473. And, based on the partial record supplied by
appellant, these orders are not appealable "collateral
orders" under the doctrine announced in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). There do not
appear to be any "important and unsettled questions of
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controlling law", nor are the orders "effectively
unreviewable" on appeal from a final judgment. United States
v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979); see also In
re M.S.V., Inc., 892 F.2d 5, 7 (1st Cir. 1989) (quoting from
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
The Supreme Court recently concluded that 28 U.S.C.
158 is not the exclusive provision governing bankruptcy
appellate jurisdiction. In Connecticut Nat'l Bank v.
Germain, 503 U.S. , 112 S. Ct. 1146 (1992), the Court held
that following appeal from an interlocutory bankruptcy order
to the district court under 158(a), further discretionary
review might then be sought in the court of appeals under 28
U.S.C. 1292(b). However, this avenue, too, is closed to
appellant, as 1292(b) grants discretionary jurisdiction to
the court of appeals only if the district court certifies
that the case involves "a controlling question of law as to
which there is a substantial ground for difference of
opinion," and an immediate resolution by appeal may
"materially advance" the ultimate termination of the
litigation. Although appellant's failure to expressly seek
such a certificate here might be held to be a waiver, we need
not decide that question, for contrary to the allowance in
1292(b), the district court expressly determined that the
only legal issues raised were simple, and easily disposed of
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on the merits.1 Finally, as it appears that there are
available adequate alternative appellate processes, we have
no occasion consider these appeals under the All Writs Act,
28 U.S.C. 1651.
For the foregoing reasons, these appeals are dismissed
without prejudice. Since we have no jurisdiction, we also
deny appellant's motion to supplement the record with new
evidence. Appellee's request for costs and sanctions is
denied.
1. Unlike 28 U.S.C. 1292(b), 158(a) does not set forth
express standards to guide the district court's grant of
leave to appeal from an interlocutory bankruptcy order to the
district court. In the absence of an express certification
under 1292(b), then, we would not ordinarily be in a
position to conclude that a district court's grant of leave
to take a first stage appeal under 158(a), necessarily
included consideration of the issues relevant to a 1292(b)
certificate. In this case, the district court's articulated
reasons for granting leave under 158(a) included findings
opposed to those required for issuance of a 1292(b)
certificate, and so we need not reach the further issue
whether appellant's failure to seek the certificate
effectively waived his right to do so.
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