JAMES E. GRAVES, JR., Circuit Judge:
This case arises from a dispute over attorney's fees that were generated in an underlying bankruptcy case. Okin Adams & Kilmer L.L.P., ("OAK") made a request for attorney's fees in the bankruptcy court for the legal services it provided when representing debtors in Chapter 11 proceedings. The bankruptcy court awarded OAK only a portion of its overall attorney's fees request. OAK appealed the bankruptcy court's decision to the district court. OAK now seeks review of the district court's order, which vacated in part and remanded the case back to the bankruptcy court. We need not reach the merits of this appeal because we find appellate jurisdiction to be lacking under this Court's well-established principle that a district court order is not final within the meaning of 28 U.S.C. § 158(d) when that order reverses an order of the bankruptcy court and remands the case for significant further proceedings on the very issue the parties seek to address on appeal. This appeal is therefore DISMISSED for lack of appellate jurisdiction.
This appeal arises out of a bankruptcy proceeding initiated on December 23, 2008, by Charles Cheatham, who filed for bankruptcy under Chapter 11 of the bankruptcy code on behalf of himself and several companies he owned, including Sterling Exploration & Production Co., LLC; Yazoo Pipeline Co., L.P.; and Matagorda Operating Company. (R. 3206). The bankruptcy cases were jointly administered, and the bankruptcy court entered an order authorizing OAK to represent the debtors effective January 9, 2009. (R. 3207). After the bankruptcy cases were filed, the
Finding that the debtors had failed to meet filing and reporting deadlines, had failed to comply with court orders, and were continuing to operate at a loss, the bankruptcy court ordered that the Yazoo and Sterling cases be converted to Chapter 7 on December 8, 2009, and the court converted Matagorda's case to Chapter 7 on February 8, 2010. (R. 3212). Joseph M. Hill was appointed to serve as the Chapter 7 trustee in the debtors' cases. (R. 3212).
On April 6, 2010, OAK filed an application in the bankruptcy court for fees and expenses incurred while serving as the debtors' counsel in the Chapter 11 cases. (R. 3213). OAK requested $364,566.50 in fees and $8,881.55 in expenses for legal services it performed between January 9 and December 8, 2009. (R. 3213). OAK's fee application divided its work into nine categories.
OAK appealed the bankruptcy court's decision to the district court. (R. 3217). Upon appellate review, the district court issued its order on December 21, 2012, which affirmed in part, vacated in part, and remanded the case back to the bankruptcy court. (R. 3205-32). Specifically, the district court affirmed the bankruptcy court's ruling that only three categories of OAK's services were compensable under the Pro-Snax rule (R. 3206); vacated the award of $60,000 in fees and expenses because OAK had not identified how many hours it spent providing legal services for the three compensable categories of work (R. 3206); and (3) remanded the case to the bankruptcy court to determine a reasonable attorney's fee award, after OAK submitted an additional fee request that complied with the district court's order. (R. 3251). In its order remanding the case back to the bankruptcy court, the district court explained:
(R. 3229-30). On January 18, 2013, OAK appealed the district court's order to this Court, challenging the district court's ruling on its attorney's fees request. (R. 3234-36).
Upon initial review of the district court's order and the parties' briefs, we became concerned about the jurisdictional grounds for hearing this appeal. On October 16, 2013, we requested additional briefing from the parties on the question of whether this Court has jurisdiction to hear this appeal based on the district court's remand order. After thorough consideration of the district court's order, the parties' supplemental briefs, and this Circuit's precedent, we find that we lack jurisdiction to hear this appeal for the reasons set forth below.
"We must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary." Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir.1999) (citation omitted). Even if the parties do not challenge the appellate jurisdiction of this Court, "`we are obligated to examine the basis for our jurisdiction, sua sponte, if necessary.'" In re Chunn, 106 F.3d 1239, 1241 (5th Cir. 1997) (quoting Williams v. Chater, 87 F.3d 702, 704 (5th Cir.1996)). When reviewing bankruptcy cases on appeal, this Court has "held that when a district court sitting as a court of appeals in bankruptcy remands a case to the bankruptcy court for significant further proceedings, the remand order is not `final' and therefore not appealable under § 158(d)." In re Nichols, 21 F.3d 690, 692 (5th Cir.1994).
This Court's jurisdiction over appeals from cases arising in bankruptcy court extends to all "final judgments, orders and decrees" entered by the district courts. 28 U.S.C. § 158(d), referencing subsection 158(a); In re Greene Cnty. Hospital, 835 F.2d 589, 590 (5th Cir.1988) (noting that "28 U.S.C. § 158 limits circuit court jurisdiction to `final' orders of district courts"). Discrete legal issues within a bankruptcy case may be appealed separately, however, apart from the bankruptcy case as a whole as long as the district court has made a final judgment as to the discrete legal issue being appealed. In re Orr, 180 F.3d 656, 659 (5th Cir.1999) ("A [bankruptcy] case need not be appealed as a `single judicial unit' at the end of the entire bankruptcy proceeding, but ... the order must dispose of a discrete dispute within the larger bankruptcy case for the order to be considered final." (quoting In re Texas Extrusion Corp., 844 F.2d 1142, 1155 (5th Cir.1988))).
We must determine whether the district court's remand order is "final" by
A remand order is considered to be "final" only when the bankruptcy court has nothing left to do upon remand but perform "ministerial functions," such as an entry of judgment. Caddo Parish-Villas, 174 F.3d at 626 ("A final order is one in which nothing remains to be done but the mechanical entry of judgment by the [bankruptcy] court." (internal quotations and citations omitted)). A remand order is not final, however, when it requires a bankruptcy court to perform judicial functions, such as additional fact-finding or further factual development, or requires the exercise of judicial discretion. Cortez, 457 F.3d at 453 ("Remands that require the bankruptcy court to perform judicial functions, such as additional fact-finding, are not final orders and, therefore, are not appealable to this court." (citing In re Aegis Specialty Mktg., Inc., 68 F.3d 919, 921 (5th Cir.1995))); Pro-Snax, 157 F.3d at 420 (noting that a remand order "is not final if it necessitates further factual development or other significant judicial activity involving the exercise of considerable discretion").
In the instant appeal, neither party has raised the issue of jurisdiction before this Court, however, "we are obligated to examine the basis for our jurisdiction, sua sponte, if necessary." Cortez, 457 F.3d at 453 (citing In re Chunn, 106 F.3d at 1241) (internal quotations omitted). Furthermore, this Circuit's precedent establishes that appellate review of an attorney's fee award is improper when a district court remands a case back to the bankruptcy court to perform additional factual development regarding the attorney's fee request. See, e.g., Pratt, 524 F.3d at 585 (holding that a remand order was not final when it required the attorney seeking fees to "submit additional evidence regarding his fees and allow[] [opposing counsel] the right to examine, question, or otherwise argue against the claimed fees and expenses"); In re Pericone, 319 Fed.Appx. 325, 326 (5th Cir.2009) (noting that "a district court's remand to a bankruptcy court to determine whether attorneys' fees were warranted and if so, in what amount, requires the bankruptcy court to perform `significant further proceedings.'"); In re Gadzooks Inc., 291 Fed.Appx. 652, 654 (5th Cir.2008) (same).
The district court's order in the instant appeal is not final because it requires the bankruptcy court to perform extensive further proceedings upon remand. The district court explained that there was no factual basis in the record upon which an attorney's fee award could be granted because "[t]he parties did not identify or provide any efficient way for the court to identify, how many hours OAK spent on these three categories of legal services." (R. 3229-30). Accordingly, the district
We must also decline to accept jurisdiction in this case in order to avoid generating piecemeal appeals. As we have previously held, "[e]ven where a remand neither enhances nor alters this court's resolution of the issues before it, and even where immediate resolution of an appeal might render the remand futile, we must be wary of accepting jurisdiction where doing so may result in future piecemeal appeals." Caddo Parish-Villas, 174 F.3d at 629. If we were to accept jurisdiction in this case and, assuming arguendo, that we affirmed the district court's decision regarding attorney's fees, the bankruptcy court would still have to consider OAK's
OAK has filed a notice of appeal on the district court's order that required the bankruptcy court to perform judicial functions upon remand. The district court's order was not final and this Court does not have jurisdiction to hear this appeal accordingly. Therefore, this appeal is DISMISSED for lack of jurisdiction.
LESLIE H. SOUTHWICK, Circuit Judge, dissenting:
With respect, I dissent. In my view, we have jurisdiction to resolve this appeal on its merits.
As the majority opinion states, our jurisdiction extends to "final decisions, judgments, orders, and decrees." 28 U.S.C. § 158(d). "[W]hen a district court sitting as a court of appeals in bankruptcy remands a case to the bankruptcy court for significant further proceedings, the remand order is not `final' and therefore not appealable under § 158(d)." In re Cortez, 457 F.3d 448, 453 (5th Cir.2006). Significant further proceedings are ones likely to generate new appeals. Matter of Pro-Snax Distributors, Inc., 157 F.3d 414, 420 (5th Cir.1998). The remand to the bankruptcy court in our case was not of that nature.
Understanding what the district court ordered in this case begins with its memorandum opinion. Relevant here, the court agreed with the bankruptcy court that only three categories of submitted legal services were compensable. Though the bankruptcy court "correctly applied Pro-Snax's requirement that it award fees based on whether the attorneys' services resulted in a material benefit," the district court could not determine whether the fee amount was properly calculated. Thus the case was "remanded for the bankruptcy court to determine the reasonable fee, after OAK identifies the number of hours to be allocated to the three categories of compensable services." To me, this required that the attorney take the documentation already provided and identify which hours applied to the relevant categories.
The district court's actual order also shows the narrowness of the task:
Finally, the bankruptcy court explained on remand what it thought was necessary. That court's final order of January 28, 2013, awarded about $90,000 in attorneys' fees. The three-page order recounts that after receiving the remand, the bankruptcy court ordered OAK to file a supplement to its original fee application. What the supplement apparently did — the appellate record does not contain the supplement — was identify which billing entries from the original fee application OAK filed in April 2010, applied to which of the three categories of compensable work. For example, one of the appropriate categories for compensation was for the initial review of the issues and facts of the case. In January 2013, the bankruptcy court pulled five specific entries out of what OAK filed as a supplement and found that they were not
In sum, the district court ordered the bankruptcy court to have OAK cull from its original fee application all entries for work that under Pro-Snax was not compensable. Then OAK resubmitted those remaining entries from the already-introduced billing records. The bankruptcy court could only ascertain the hours of work within those categories from existing evidence on the record. OAK certainly could not add to its billing for prior work not already included in its first fee application. The bankruptcy court determined, based on what the individual time entries from the original billings said about the work, the hours and fees owed to OAK under the district court's determination of compensable categories of work.
Our question is whether OAK's appeal from the district court's order that interpreted Pro-Snax to deny compensation for certain categories of work may properly proceed even though the order from which the appeal was taken included a remand for the purposes I just described. Appeals from orders in bankruptcy cases under Section 158(d) are something of a special category in federal practice. This circuit once gave a useful description of finality for purposes of bankruptcy as being "a more flexible concept than in ordinary civil proceedings, [but] it is not an empty vessel into which the courts may pour whatever meaning they favor." In re Lift & Equipment Serv., Inc., 816 F.2d 1013, 1016 (5th Cir.1987). I am trying to avoid treating Section 158(d) as such as vessel, but I do believe it will hold more than the majority is allowing.
Analyzing the reach of our jurisdiction under Section 158(d) after the enactment of the substantial amendments in 1984 to the Bankruptcy Code, this court summarized the history of appellate review of final bankruptcy court orders. Path-Science Laboratories, Inc. v. Greene Cnty. Hosp. (Matter of Greene Cnty. Hosp.), 835 F.2d 589, 591-93 (5th Cir.1988). After describing the complications of the prior practice, the court, in an opinion brimming with allusions to baseball,
Id. at 595 (citations omitted).
Whether the first factor is satisfied — was the bankruptcy court's order under
In a case much discussed by the parties, we held that appellate review is precluded where "extensive further proceedings" before the bankruptcy court were required by the district court's remand order. Pro-Snax, 157 F.3d at 420. The emphasis on the existence of "significant further proceedings" appears in many cases. See, e.g., In re Caddo Parish-Villas S., Ltd., 174 F.3d 624, 628 (5th Cir.1999). If a remand requires significant further proceedings, we label those proceedings as a "judicial function" and hold there is no jurisdiction for an appeal. See Cortez, 457 F.3d at 453. "However, if the remand involves only ministerial proceedings, such as the entry of an order by the bankruptcy court in accordance with the district court's decision, then the order should be considered final." Id.
Comparing these articulations, it might at first be thought that there is a large gap between what is appealable and what is not. On the one hand, only if significant additional proceedings would occur on remand is the district court order not appealable. On the other, only if the remand is for something as pro forma as entry of judgment is the district court's order appealable. I believe that an elaboration of what our predecessor judges meant by these seemingly widely separated standards will better reveal the boundary between them.
One of our first cases after the 1984 amendments held that a district court order that remanded to a bankruptcy court is appealable "if all that remains to do on remand is a purely mechanical, computational, or in short [a] `ministerial' task, whose performance is unlikely to affect the issue that the disappointed party wants to raise on appeal from the order of remand." In re Lift & Equipment Serv., Inc., 816 F.2d at 1016 (quoting In re Fox, 762 F.2d 54, 55 (7th Cir.1985)). This elaboration on the meaning of "ministerial" task is quite helpful. That meaning was given life by our permitting the appeal to go forward despite the more than rubber-stamp nature of the remand:
Id. Our situation is similar to the remand obligation in Lift & Equipment, where the appellate court had jurisdiction despite the remand to the bankruptcy judge to review expenses and make determinations as to specific items to deduct. One distinction is that in this prior case, there is no indication that the party seeking payment of the fees and expenses made a first pass at showing how the required deductions were to be made under the district court's order. It quite reasonably might have, but maybe it did not. Certainly in Lift & Equipment the parties would have been
The Seventh Circuit case on which we relied in Lift & Equipment also held it to be relevant whether the bankruptcy court's remand tasks were likely to alter the appellate issues or result in new ones:
Fox, 762 F.2d at 55.
It appears odd, at least to my eyes, that our jurisdiction-defining analysis is structured on relative likelihoods. I conclude, though, that such evaluations are central to the well-established analysis. This circuit's precedents continuously refer to "significant" additional proceedings on remand as eliminating appellate jurisdiction, which is a modifier roughly quantifying the bankruptcy court's remand tasks without stating absolute rules defining when appellate jurisdiction exists. See, e.g., Pro-Snax, 157 F.3d at 420.
One specific point made by my colleagues is that where a remand order "require[s] the bankruptcy court to perform judicial functions, such as additional fact-finding" it does not constitute a final order. Cortez, 457 F.3d at 453. Another precedent stated that a remand order is not final where "it necessitates further factual development or other significant judicial activity involving the exercise of considerable discretion." Pro-Snax, 157 F.3d at 420. In my view, these different characterizations are summaries of a more involved distinction. I examine what was behind the statement that a remand mandating "additional fact-finding" is not appealable. Cortez, 457 F.3d at 453 (citing Aegis Specialty Mktg., Inc. v. Ferlita (In re Aegis Specialty Mktg., Inc.), 68 F.3d 919, 921 (5th Cir.1995)). The Aegis case was not computational fact-finding. It involved whether we had jurisdiction over a district court order that had reversed the bankruptcy court's confirmation of a Chapter 11 plan and remanded for an evidentiary hearing on plan confirmability. Aegis Specialty Mktg., 68 F.3d at 920-21. Remembering that the ultimate, if subjective, question is whether "significant" proceedings will occur on remand, interpreting Cortez to say that any fact-finding on remand destroys appellate jurisdiction is incorrect. Additional fact-finding on remand that bars appellate jurisdiction must be more than a computational task "unlikely to affect the issue that the disappointed party wants to raise on appeal from the order of remand." In re Lift & Equipment Serv., Inc., 816 F.2d at 1016. Computational tasks are by definition a form of fact-finding. Thus, we cannot determine our jurisdiction simply by noting the remand requires facts to be found.
The remand in the present case requires more than a mechanical entry of judgment by the bankruptcy court, but it also involves only mechanical and computational tasks that are "unlikely to affect the issue that the disappointed party wants to raise on appeal." See id. The likelihood at the time of the remand that there would not be a post-remand appeal is supported now by the absence of any such appeal. This is
A second look at the remand order here would be useful. The district court reversed the bankruptcy court's fee award of $60,000 and remanded for a recalculation. It had determined that OAK was entitled to attorney's fees for three categories of compensable services. The remand was to allow calculation of the award based on those categories. As the court found no "efficient way for the court to identify" the hours spent by OAK on these three categories, it required calculation of the award on remand take place "after OAK identifies the number of hours to be allocated to the three categories." After looking at OAK's lengthy April 2010 fee application, I certainly agree that the eliminating of time entries would require some work. But the work is, to use the relevant word, mechanical. The court remanded to the bankruptcy court for it to rule within these tightly defined parameters. In short, the district court required a calculation of fees, based on evidence of hours already in the record, that were allocable to three specific categories of service determined to be compensable by the district court. In my opinion, the bankruptcy court's obligations on remand do not rise to the level of significant further proceedings.
I find the caselaw identified by the majority to be entirely consistent with these views. In one of our decisions declining jurisdiction, the district court's remand required the bankruptcy court to determine "whether the award [of attorney's fees] is warranted and, if so, whether the amounts requested [] for attorney's fees and expenses are reasonable and necessary." In re Pratt, 524 F.3d 580, 585 (5th Cir.2008). The remand order required more evidence to be taken, with the right of those opposing the fee "to examine, question, or otherwise argue against the claimed fees and expenses." Id. This remand required the performance of judicial functions. Id. Pratt fits well within our settled principle that jurisdiction is absent where significant additional proceedings are required in the bankruptcy court, and also reveals why appeal from the remand order here does not run afoul of those same principles.
Quite differently, the remand here instructed the bankruptcy court to "determine a reasonable fee, after OAK identifies the number of hours to be allocated to the three categories of compensable services." The remand did not require the bankruptcy court to determine whether fees were warranted. Unlike Pratt, where significant adversarial proceedings on remand were contemplated, OAK was to identify the hours allocated to each of three categories; that identification was limited to the already-existing record; the bankruptcy judge was directed to use the resulting calculation to award fees to OAK in accordance with the district court's decision.
The majority also discusses another line of cases advising that "we must be wary of accepting jurisdiction where doing so may result in future piecemeal appeals." Caddo Parish-Villas, 174 F.3d at 629. That concern is not a separate element of our jurisdiction analysis, but instead it identifies that "the purpose of Section 158(d)'s finality requirement `is to avoid piecemeal appeals.'" Id. (citation omitted, emphasis added). In Caddo Parish-Villas, we declined jurisdiction where upholding a district court's order on appeal would not
The present appeal might moot the bankruptcy court's fee calculation on remand, but the action taken by the bankruptcy court as a result of the remand would not moot the issue on our appeal. Avoiding superfluous remands is not the purpose of Section 158(d), though we certainly do not suggest bankruptcy judges should be given such remands. The policy of avoiding piecemeal appeals is fully satisfied by allowing this appeal.
I acknowledge that terms like "significant" proceedings, mere "computational" tasks, and "likelihood" of future appeals, are inherently flexible terms. Subjective judgments are involved despite that the goal is a decision about jurisdiction. My judgment differs from that of the majority. I am concerned that refusing to hear this appeal undermines the long-recognized, salutary purpose of allowing appeals on discrete issues well before a final order in bankruptcy that would meet 28 U.S.C. § 1291 standards.
The majority's denial of jurisdiction forecloses access to appellate review when it should be available. Respectfully, I dissent.
Id. at 1016.