LEE H. ROSENTHAL, Chief District Judge.
The appellants, Thomas Balke, TEBJES Inc. d/b/a Basic Equipment, and Ultrawave Technology for Emulsion Control LLC d/b/a Ultratec LLC, appeal from the bankruptcy court's judgment in Adversary No. 14-03375, Don B. Carmichael, KK & PK Family LP, Barry D. Winston and Gary Emmett v. Tommy Balke, in his individual capacity, TEBJEC, Inc., d/b/a Basic Equipment, and Ultrawave Technology for Emulsion Control LLC d/b/a Ultratec LLC, filed in Bankruptcy No. 13-30466, In re Imperial Petroleum Recovery Corp.
The appellants move this court to determine its appellate jurisdiction. (Docket Entry No. 2). The appellees, Don B. Carmichael, KK & PK Family LP, Barry D. Winston, and Gary Emmett, oppose the motion. (Docket Entry No. 8). Based on the record, the parties' briefing, and the applicable law, the court denies the appellants' motion as moot, without prejudice subject to either party's reurging based on supplemental briefing. The reasons for this decision are explained below.
A timeline is helpful:
"Federal courts are not in the business of rendering advisory opinions." C & H Nationwide, Inc. v. Norwest Bank Tex. NA, 208 F.3d 490, 493 (5th Cir. 2000). "Federal courts are without the power to decide moot questions, that is, `when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.'" Calderon v. Moore, 518 U.S. 149, 150 (1996) (internal quotation marks and citation omitted). Relief that requires an advisory opinion "on the district court's possible future behavior" cannot be granted in the absence of an "actual case or controversy." United States v. Featherstone, 703 Fed. Appx. 300, 303 (5th Cir. 2017).
"The district courts have the authority to hear appeals from the final judgments of a bankruptcy court." 28 U.S.C. § 158(a); In re Cowin, 538 B.R. 721, 731 (S.D. Tex. 2015), aff'd sub nom. Matter of Cowin, 864 F.3d 344 (5th Cir. 2017). Federal Rule of Bankruptcy Procedure 8002 states: "Except as provided in subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed." FED. R. BANKR. P. 8002(a)(1). Rule 8002(b) states:
FED. R. BANKR. P. 8002(b)(1)-(2).
"[W]hen a notice of appeal has been filed in a bankruptcy case, the bankruptcy court retains jurisdiction to address elements of the bankruptcy proceeding that are not the subject of that appeal." In re Transtexas Gas Corp., 303 F.3d 571, 580 (5th Cir. 2002) (citing Sullivan Cent. Plaza I, Ltd. v. BancBoston Real Estate Capital Corp. (In re Sullivan Cent. Plaza I, Ltd.), 935 F.2d 723, 727 (5th Cir.1991)).
The appellants ask this court to determine whether it has appellate jurisdiction. (Docket Entry No. 2). The appellants acknowledge the general principle that appellate jurisdiction vests after a notice of appeal is filed, but they do not affirmatively make that argument as applied to the facts in this case. Rather, the appellants ask the court "to resolve the jurisdictional issue and to provide clarity to the parties and the court below." Id. at 7. The appellees, in contrast, affirmatively argue that appellate jurisdiction vested after the appellants' notice of appeal was filed, giving this court the authority to hear the bankruptcy appeal. (Docket Entry No. 8 at ¶ 8).
The appellants' motion is moot because it asks the court for an advisory opinion. Motions to determine jurisdiction are uncommon, but when courts have entertained them, jurisdiction is often disputed. See, e.g., Jackson v. Missouri, Kan. & Okl. Coach Lines, 63 F.Supp. 828, 829 (W.D. Mo. 1945) (confirming jurisdiction when the parties disagreed on irregularities in a removal proceeding); In re Duckworth, No. 12-CV-1148, 2012 WL 4518056, at *1 (C.D. Ill. Oct. 2, 2012) (dismissing for lack of jurisdiction when the parties contested whether a bankruptcy court's order was an appealable final order).
The court recognizes that the Fifth Circuit has allowed the determination of appellate jurisdiction absent a genuine controversy. See In the Matter of National Gypsum Co., 208 F.3d 498 (5th Cir. 2000). But in National Gypsum Co., both parties made arguments about whether appellate jurisdiction should have been confirmed. Id. at 501, n.3 ("[W]e have before us a pending motion—Defendant/Appellee's Motion to Determine Appellate Jurisdiction. Defendant/Appellee contends that jurisdiction is proper; in their response, Plaintiffs/Appellants concur. Upon due consideration of the parties' filings, the record of the proceedings below, and the applicable law, we agree."). Here, the appellants do not argue that appellate jurisdiction is proper. Calderon, 518 U.S. at 150; C & H Nationwide, 208 F.3d at 493. Because the appellants are "not prepared to argue that jurisdiction exists . . . the court, under our adversary system, should not make the argument." Bradfield v. United States, 35 Fed. Cl. 277, 278 (1996).
The court needs additional briefing before it can properly make a jurisdictional determination in this case. The appellants recognize that "whether Appellants' Motion to Reconsider the February 21, 2018 dismissal order qualifies as an order that will extend time under Fed. [R. Bankr. P.] 8002(b)(1)" is an issue that must be resolved, but neither party has argued whether the appellants' reconsideration motion falls into the Federal Rule of Bankruptcy Procedure 8002(b)(1) motions category. (Docket Entry No. 2 at 5); FED. R. BANKR. P. 8002(b)(1). This determination bears on when the appellants' notice of appeal became or will become effective and whether jurisdiction was removed to this court before the bankruptcy court vacated the dismissal order. FED. R. BANKR. P. 8002(a)(1), (b)(2).
The appellants are ordered to file supplemental briefing on whether their reconsideration motion falls under Rule 8002(b)(1), and how their argument impacts the court's appellate jurisdiction analysis. The appellants must file their brief by
The appellants' motion to determine appellate jurisdiction is denied as moot, without prejudice subject to either party's reurging based on supplemental briefing. (Docket Entry No. 2). The appellants must file supplemental briefing on the Rule 8002(b) issue by