MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, District Judge.

This case is before the court on the Motion for Partial Dismissal filed by appellee Jefferson County, Alabama, (doc. 4),1 and Motion to Consolidate, (doc. 14), and Motion to Strike, (doc. 15), filed by appellants — Andrew Bennett; Roderick V. Royal; Mary Moore; John W. Rogers; William R. Muhammad; Carlyn R. Culpepper; Freddie H. Jones, II; Sharon Owens; Reginald Threadgill; Rickey Davis, Jr.; Angelina Blackmon; Sharon Rice; and David Russell (hereinafter "the Ratepayers"). The Ratepayers have appealed the bankruptcy court's confirmation of the County's Chapter 9 Plan, as well as certain other orders in related adversary proceedings. For the reasons below, the court finds that the County's Motion for Partial Dismissal, (doc. 4), is due to be granted in part and denied in part, and the Ratepayers' Motion to Strike, (doc. 15), and their Motion to Consolidate, (doc. 14), are due to be denied.

I. MOTION TO STRIKE

The Ratepayers, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure and Rule 7012 of the Federal Rules of Bankruptcy Procedure, ask the court to strike the County's Motion for Partial Dismissal. (Doc. 15 at 2.) Rule 12(f) allows a court to strike "from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Rule 7012 is inapplicable because the Rules of Part VII of the Federal Rules of Bankruptcy Procedure govern only adversary proceedings, and an appeal from the bankruptcy court is not an adversary proceeding. See Fed. R. Bankr.P. 7001. The Ratepayers do not contend that the County's Motion for Partial Dismissal is "a pleading," or that it is "redundant, immaterial, impertinent, or scandalous." Rather, they assert that the Motion is premature and "legally unsupportable," and that the "Bankruptcy Rules do not allow a preemptive strike on appellants' opening brief." (Doc. 15 at 3-4.)

The court disagrees. Indeed, the Eleventh Circuit has affirmed the practice of deciding a motion to dismiss an appeal on mootness grounds before addressing the merits. See, e.g., In re Seidler, 44 F.3d 945, 947 (11th Cir.1995). Therefore, the Ratepayers' Motion to Strike, (doc. 15), will be denied.

II. MOTION FOR PARTIAL DISMISSAL

A. FACTS AND CLAIMS OF THE RATEPAYERS2

In a Memorandum Opinion entered in 2012, the bankruptcy court set forth the following facts:

In re Jefferson Cnty., Alabama, 474 B.R. 228, 236-245 (Bankr.N.D.Ala.2012).

In its Memorandum of Law in Support of Motion for Partial Dismissal, (doc. 5), the County adds the following facts:

(Doc. 5 at 15-16.)

In arguing for the Plan's confirmation, the County had stated that the "Plan slashes the outstanding sewer debt from approximately $3.2 billion to approximately $1.7 billion — a consensual reduction of nearly half of the outstanding principal." (B. Doc. 2203 [Omnibus Reply Brief in Support of Plan Confirmation] at 14 [emphasis in original].) The County argued that the Plan was "built on three basic principles":

(Id.)

(Id. at 15.)

(Id.)

The "single-digit sewer rate increases" to which the County refers in its third basic principle manifest themselves in the Plan's Approved Rate Structure, and the Confirmation Order required the County Commission to "adopt and maintain the Approved Rate Structure in accordance with the Rate Resolution." (Doc. 1-2 at 57.) The Approved Rate Structure is a schedule that, unless a specified alternative method is employed, requires the County Commission to increase sewer rates by at least12 7.89% per year for the first four years (a total increase of at least 35.47%),13 and at least 3.49% per year for "each remaining fiscal year that the New Sewer Warrants remain outstanding...." (B. Doc. 2182 at 109-110.) Assuming a forty-year implementation, as discussed below, the minimum total increase will be approximately 365%.14

If the County Commission does not make the required rate increases, the bankruptcy court can order compliance with the Approved Rate Structure, because the bankruptcy court "pursuant to Bankruptcy Code section 945(a) ... retain[ed] jurisdiction over the Case and as provided in Section 6.4 of the Plan." (Doc. 1-2 at 77.) Section 945(a) allows the bankruptcy court to "retain jurisdiction over the case for such period of time as is necessary for the successful implementation of the plan." 11 U.S.C. § 945(e). Section 6.4 of the Plan reserves "exclusive jurisdiction" to the bankruptcy court to adjudicate disputes over the "enforcement of the Approved Rate Structure." (B. Doc. 2182 at 91-92 ¶ 4(l).) The Plan contemplates that its implementation — that is, the retiring of the New Sewer Warrants — will take forty years. (B. Doc. 2203 at 14.)

The County Commission's alternative to making the "Required Percentage Increases" is to enact a specified "Adjusting Resolution." (B. Doc. 2182 at 109.) The Adjusting Resolution alternative does not give the County Commission discretion to decide for itself how it will handle sewer rates because any Adjusting Resolution must "fully comply with the New Sewer Warrant Indenture, including the rate and revenue covenants therein." (Id. at 111.) Those rate and revenue covenants require the County to take certain measures to remedy any failure to comply with the "Required Coverage Ratios," one of which requires that "Net Revenues [of the sewer system] for the Fiscal Year in question must be not less than 110% of Debt Service Requirements on all Secured Obligations payable during such Fiscal Year." (B. Doc. 2245-1 [Trust Indenture, or New Sewer Warrant Indenture dated Dec. 1, 2013] at 15, 63.) This provision precludes the County from enacting an Adjusting Resolution that decreases rates unless it can somehow offset the decrease in that fiscal year, for instance by increasing its customer base.15

The County publicly offered New Sewer Warrants totaling $1,785,486,521.65. (Doc. 5 at 15; doc. 7-1 at 2.) One credit rating agency, Fitch, Inc., gave these warrants a "junk bond" rating. Fitch, Inc., rated the warrants BB+ and BB, respectively. (Doc. 8-10.) "BB" investments are "speculative," and "indicate an elevated vulnerability to default risk...." Fitch Ratings, Definitions of Ratings and Other Forms of Opinion at 15, available at https://www.fitchratings.com/web_content/ratings/fitch_ratings_definitions_and_scales.pdf. A November 13, 2013, Moody's report noted that "the bond trustee could ... ask the court to compel the county to enforce its bankruptcy plan," if the County rescinded the rate increases; Moody's noted that it was "not aware of a precedent for a federal court to compel public utility rates of this nature, given the federalism issues involved in this bankruptcy." (Undocketed submission sent by the County's counsel to the court); see also Mary Williams Walsh, A Municipal Bankruptcy May Create a Template, N.Y. TIMES, Nov. 20, 2013, at B1, available at http://nyti.ms/1hMafOf. Standard and Poor's rated the Senior New Sewer Warrants BBB and the junior warrants BBB-. (Doc. 8-10.) According to its rating system, "BBB" and "BBB-" represent investment-grade bonds, with "BBB-" being the lowest investment grade. Standard & Poor's, Guide to Credit Rating Essentials at 12, available at http://img.en25.com/Web/StandardandPoors/SP_CreditRatingsGuide.pdf.

Of the proceeds from the sale of the New Sewer Warrants, $1,698,082,801.24 went toward "retiring" the existing sewer warrants (or the "Retired Sewer Warrants"), (doc. 5 at 33; doc. 6-1 at 8 (Tablack decl. ¶ 6)), which had an "aggregate principal amount of $3.08 billion as of the date on which the Plan was confirmed," (doc. 6-1 at 3). The vast majority of the remaining amount went toward funding an insurance policy backing the new warrants. (Doc. 5 at 33; doc. 6-1 at 8 ¶ 7.)

While the County's other debts were affected by the Plan, those effects appear much less significant in comparison to the restructuring of the debt related to the sewer system. (See doc. 5 at 19-23.) As the County has stated, "The Plan provides for repayment in full of all non-sewer warrants on terms favorable to the County...." (B. Doc. 2203 at 3.) The Plan effectuates this by exchanging existing General Obligation warrants and school warrants for new ones. (Doc. 5 at 19-21.)

On November 20 and 21, 2013, the bankruptcy court held a confirmation hearing. (See Transcripts of Hearings held Nov. 20, 2013 and Nov. 21, 2013.) During the hearing, the bankruptcy court went through the County's proposed Plan line by line, and it heard and responded to arguments from the Ratepayers' counsel on why the Plan should not be confirmed. At one point, the Ratepayers' counsel summarized his clients' problems with the Plan into "three simple points":

(Transcript of Nov. 21, 2013 hearing at 704.)

The Confirmation Order was entered the next day, November 22, 2013. (B.Doc. 2248.) Two weeks before the bankruptcy court entered the Confirmation Order, the County had asked the court to waive the automatic stay of the Confirmation Order. (B. Doc. 2183 at 40.) Bankruptcy Rule 3020(e) ordinarily imposes an automatic fourteen-day stay on the operation of a confirmation order. The Ratepayers did not object to waiving the automatic stay at the hearing. (Transcript of Nov. 21, 2013 hearing at 1013.)

When the bankruptcy court entered the Confirmation Order on November 22, 2013, it exercised its discretion under the rule to waive the automatic stay. (Doc. 1-2 at 1, 78.) The Ratepayers filed a Notice of Appeal on December 1, 2013, (doc. 1-3), and a Protective Motion for Leave to Appeal, (doc. 1-4). They did not ask the bankruptcy court for a stay of its Confirmation Order pending this appeal.

The Plan's Effective Date was December 3, 2013. On that day, the County issued the New Sewer Warrants, the proceeds of which went in part toward retiring the "Retired Sewer Warrants." (Doc. 6-1 at 7-8.) The Depository Trust Company, "a clearinghouse system for institutional and individual investors who hold publicly traded securities," received "more than $1.454 billion" of those proceeds. (Doc. 5 at 34; doc. 10-1 at 7.) Many of the cases that made up the pre-bankruptcy "litigation erupt[ion]" were dismissed with prejudice. (Doc. 5 at 13, 37.) Some of these cases involved issues that the Ratepayers have raised; the County has maintained that, to the extent the Ratepayers' claims have "any validity at all," their claims are the County's to pursue. (B. Doc. 1977 [Disclosure Statement dated July 29, 2013] at 127.) The Ratepayers contend a conflict of interest between the County and its sewer ratepayers enables them to pursue what otherwise might be County causes of action. (See, e.g., B. Doc. 2237 at 59-62;16 doc. 23 at 19.) The Confirmation Order bars "any and all Persons from commencing or continuing any action, directly or indirectly ... to assert ... any Ratepayer Claims." (Doc. 1-2 at 27, 74; see also doc. 7-29 at 90-91 ["[A]ny Person seeking to exercise the rights of the County (including in respect of the County's Causes of Action purportedly asserted in the Bennett Action[)] ... are permanently and completely enjoined from commencing or continuing any action...."].) When discussing these provisions during the confirmation hearing, the bankruptcy court explained that these provisions prevented a "double recovery against the same defendants." (Transcript of Nov. 21, 2013 at 1005.)

B. PARTIES' ARGUMENTS ON APPEAL

1. The County

The County argues that this appeal has three parts: the Confirmation Order, the two adversary proceedings involving the Ratepayers, and the Ratepayers' proof of claim. (Doc. 5 at 9.) It argues that the first two parts should be dismissed because the first part is moot and the second part is the subject of separate appeals. (Id.)

The County argues that the appeal of the Confirmation Order is moot constitutionally, equitably, and statutorily.17 Its constitutional argument attacks the court's subject matter jurisdiction, asserting that the appeal is not a live Article III case or controversy because events have occurred subsequent to the appeal (namely, the Plan's consummation) that make it impossible for the court to grant the appellants "meaningful relief." (Id. at 39 [quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001)].) Since the Plan's terms are all "inextricably interwoven," the Ratepayers' requested relief — that some of the creditors pay back some of the money and that the County not be tied to the Approved Rate Structure — would "require the entire Plan to be unwound," and this court lacks authority to compel the County to unwind the Plan. (Id. at 40-41.)

The County also argues that a "broader concept than constitutional mootness" exists called "equitable" mootness. (Id. at 49.) Equitable mootness, it claims, is a doctrine rooted in the concern for finality, and occurs when the court "cannot grant effective judicial relief." (Id. [quoting In re Club Assocs., 956 F.2d 1065, 1069 (11th Cir.1992)].) The County argues that "the primary question" in determining whether an appeal is equitably moot is whether the "reorganization plan has been so substantially consummated that effective relief is no longer available." (Id. at 52 [quoting Miami Ctr. Ltd. P'ship v. Bank of N.Y., 820 F.2d 376, 379 (11th Cir.1987) (hereinafter Miami Center I)].)18 Because the Plan has been "substantially consummated" in this case, the County argues that a "strong presumption" should arise that no "equitable and effective remedy" is available even for meritorious arguments or, at least, that the Plan "should be disturbed only for compelling reasons." (Id. at 55 [citations omitted].)

Besides it being impossible to unravel the Plan or return the parties to the status quo, the County argues, doing so would be inequitable because it would adversely affect third parties that received distributions from the Plan and third parties who purchased New Sewer Warrants in reliance on the Plan. (Id. at 58-61.) Also, the relief the Ratepayers seek would "destroy the entire Plan and propel the County back to square one in bankruptcy," apparently no matter what the relief is, because "changing even one part of such a complex confirmed plan is tantamount to destroying all of it" when it is, as the bankruptcy court found, "comprised of `a complex series of interrelated compromises and settlements.'" (Id. at 61-63 [quoting doc. 1-2 at 10].) The Plan should not be destroyed for "the benefit of a single, non-consenting party," especially when that party failed to seek a stay pending appeal and the Plan was substantially consummated. (Id. at 64-65 [citations and internal quotation marks omitted].)

Also, the County argues that the appeal of the Confirmation Order is "statutorily" moot because 11 U.S.C. § 364(e) "precludes this Court from unwinding the New Sewer Warrants ... or any other aspect of the Plan." (Id. at 68.) The County argues that "postpetition financing under section 364 may be incurred, as here, for purposes of refinancing prepetition indebtedness," and that the protection of section 364(e) extends to all the material terms of such financing. (Id. at 69 [citations omitted].) Because the Ratepayers did not obtain a stay of the Confirmation Order and the purchasers of the New Sewer Warrants acted in good faith in extending the credit, section 364(e) renders the court unable to disturb the Plan and, therefore, any appeal is moot. (Id.)

The County argues that portions of this appeal related to orders in Adversary Proceedings Nos. 12-120 and 12-16 should be dismissed because they are the subject of separate appeals, (see Case Nos. 2:14-CV-0214-SLB and 2:14-CV-0215-SLB), and, thus, are duplicates in this case.

2. The Ratepayers

The Ratepayers argue that they are creditors of Jefferson County because they overpaid for sewer services insomuch as the rates they paid incorporated the cost of $1.63 billion in Retired Sewer Warrants that they argue were void (or voidable) because they were obtained through bribery and corruption. (Doc. 23 at 7-8.) In the alternative, they argue that they are interested parties or special taxpayers entitled to intervention. (Id. at 12; see also doc. 16 at 28-29 [arguing that they have standing to appeal as "person[s] aggrieved" by the Confirmation Order and have pecuniary interest in the outcome of the appeal].) They wish to represent a class of future (and/or past) Jefferson County sewer ratepayers. (See doc. 23 at 7 ["Ratepayers ... extended credit in the form of ... `overcharges' of current and prospective sewer bills"]; id. at 8 ["Ratepayers are creditors who have extended credit in the form of past and prospective monthly sewer fees of $3.2 billion"] (emphasis added).) Instead of the bankruptcy court enforcing the collection of sewer fees for the next forty years (i.e., "act[ing] as a receiver," id. at 20), the Ratepayers propose that the County comply with the demands of Amendment 73 to the Alabama Constitution and secure voter approval of new sewer warrants that would replace the old ones. (Id. at 8, 10-11.)

They assert that this appeal presents a live case or controversy by pointing out that the County will be under a continuing obligation to collect ever-increasing sewer rates from them to pay the New Sewer Warrant holders, and that the bankruptcy court has agreed to "enforce sewer rate increases" outside of applicable state law mechanisms. (Doc. 21 at 9; doc. 16 at 26.) They also argue that any appeal is still live since all legal issues decided by the bankruptcy court are subject to de novo review by this court. (Doc. 16 at 24.) The Ratepayers argue that they are the victims of "a legal strategy to use ... equitable mootness ... to deprive Ratepayers of a hearing on the merits of their claims." (Id. at 14.) They invoke Federal Rule of Bankruptcy Procedure 7001, reading it to require a hearing on the merits of their claims asserted in Adversary Proceedings 16 and 120. (Doc. 23 at 15.) According the the Ratepayers, equitable mootness cannot override state constitutional rights and powers. (See doc. 21 at 33; doc. 23 at 18-19.) Plus, equity is in their favor because they "are the only group affected in their pocketbooks by the indebtedness restructured by the confirmed Plan of Adjustment," and "the only creditor group subject to ongoing [liability] from rate increases." (Doc. 21 at 10-11.) They argue that the County's representations in supporting confirmation of the Plan have been fraudulent, and that the County's "circumvention of the adversary rules was in bad faith and defeats any" request to invoke equity to its favor. (Doc. 23 at 16; doc. 21 at 16.) As for statutory mootness, they note that "[t]he new warrants provided no funding for the County[,] only money for the [prepetition] warrant holders[,] and were used to pay off [prepetition] warrants at increased cost to the County." (Doc. 23 at 31.) They argue that 11 U.S.C. § 364(e) does not provide protection to that sort of transaction. (See doc. 21 at 18 [quoting In re Kmart Corp., 359 F.3d 866, 870 (7th Cir.2004)].) Finally, they imply that to the extent new investors "are relying on the agreement of the bankruptcy court to enforce rate increases on the Ratepayers," such reliance cannot overcome appellate review of whether a plan violates the Tenth Amendment. (See Doc. 21 at 35 [referencing "Article X"].)

C. DISCUSSION

1. Constitutional Mootness

The County contends that the Ratepayers' appeal of the Confirmation Order is constitutionally moot.19 According to the County:

(Doc. 4 at 40-41.)

The Supreme Court recently explained the origins and contours of what the County has called "constitutional" mootness:

Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (emphasis added). "A case does not become moot simply because an appellate court is unable completely to restore the parties to the status quo ante." SunAm. Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325, 1333 (11th Cir.1996) (citing Church of Scientology, 506 U.S. at 12-14, 113 S.Ct. 447). "However small that concrete interest may be due to potential difficulties in enforcement, it is not simply a matter of academic debate, and is enough to save [a] case from mootness." Chafin, 133 S.Ct. at 1026 (quoting Knox, 132 S.Ct. at 2287) (internal quotations omitted).

The Ratepayers seek "typical appellate relief" from the Confirmation Order — they ask this court to reverse the bankruptcy court's Confirmation Order and that the bankruptcy court "undo what it has done." Id. at 1024. The fact that the Confirmation Order has taken effect — the New Sewer Warrants have issued and the Old Sewer Warrants have been retired — does not extinguish the controversy, although it may limit the scope of relief available. If, as the Ratepayers contend, the Confirmation Order's rate-structure provision is unconstitutional, the court may strike it.20 Indeed, the bond rating company Fitch noted this problem with the New Sewer Warrants and rated the creditworthiness of those warrants accordingly. The Ratepayers have a legally cognizable interest in not paying rates ordered by the bankruptcy court that is acting pursuant to an unconstitutional (the court must assume for now) Confirmation Order, and, thus, they are not precluded from pursuing their appeal. Stated differently, the court could "fashion some form of meaningful relief," Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447 (emphasis in original), by vacating the portion of the Confirmation Order that retains jurisdiction in the bankruptcy court to order rate increases according to the Approved Rate Schedule.21

The court finds that there is still a live controversy between the parties and, therefore, this appeal is not constitutionally moot. The County's Motion for Partial Dismissal, (doc. 4), based on constitutional mootness will be denied.

2. Statutory Mootness

Citing 11 U.S.C. § 364(e), the County argues that this "appeal of the Confirmation Order should also be dismissed for the separate and independent reason that it is statutorily moot." (Doc. 5 at 68.)

Section § 901(a) makes 11 U.S.C. § 364(c)-(f) applicable in Chapter 9 cases. 11 U.S.C. 901(a). The relevant provisions of § 364, entitled "Obtaining Credit," provide:

11 U.S.C. § 364(c)-(e). "The purpose of [§ 364(e)] is to encourage the extension of credit to debtors in bankruptcy by eliminating the risk that any lien securing the loan will be modified on appeal." Matter of Saybrook Mfg. Co., 963 F.2d 1490, 1493 (11th Cir.1992).

The County contends that "[p]ostpetition financing under section 364 may be incurred... for purposes of refinancing prepetition indebtedness." (Doc. 5 at 69 [citing In re AMR Corp., 485 B.R. 279, 287-88 (Bankr.S.D.N.Y.) aff'd, 730 F.3d 88 (2d Cir.2013) and In re Texaco, Inc., 92 B.R. 38, 42-43 (S.D.N.Y.1988)].) According to the County:

(Id. at 70 [emphasis in original; footnote added].)

According to the Eleventh Circuit, "bankruptcy courts are indeed courts of equity, and they have the power to adjust claims to avoid injustice or unfairness. However, ... this equitable power is not unlimited. A bankruptcy court's equitable power must and can only be exercised within the confines of the Bankruptcy Code." In re Empire for Him, Inc., 1 F.3d 1156, 1160 (11th Cir.1993) (quoting Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988), and Matter of Saybrook Mfg., 963 F.2d 1490, 1495 (11th Cir.1992)) (internal citations and quotations omitted). Therefore, only transactions authorized by § 364(c) or (d) are protected by § 364(e). See Matter of Saybrook Mfg. Co., 963 F.2d at 1493 (By its own terms, section 364(e) is only applicable if the challenged lien or priority was authorized under section 364.)

Whether issuance of the New Sewer Warrants, together with the Approved Rate Structure, to pay off the Old Sewer Warrants was a transaction authorized by section 364(c) and/or (d) is an issue of first impression in this Circuit. "By their express terms, sections 364(c) [and] (d) apply only to future — i.e., post-petition — extensions of credit. They do not authorize the granting of liens to secure pre-petition loans." Matter of Saybrook Mfg. Co., 963 F.2d at 1495; see also In re Fontainebleau Las Vegas Holdings, LLC, 434 B.R. 716, 746 (S.D.Fla.2010) (citing Collier on Bankruptcy ¶ 364.06[2], at 364-25); Bland v. Farmworker Creditors, 308 B.R. 109, 116 ("[C]ross-collateralize is to get prepetition loans secured by postpetition assets" and "a lender cannot `cross-collateralize or "refinance and re-collateralize" a prepetition secured debt by substantially all of the debtor's assets.'").

Section 364(c) and (d) authorize only particular types of actions or concessions to obtain postpetition credit or financing, and § 364(e) only protects the validity of the postpetition lender's debt and/or certain priorities and liens. Therefore, before this court can decide that § 364(e) bars an appeal of the refinancing plan, it must decide whether the terms of the refinancing plan were authorized pursuant to § 364(c) and/or (d). Matter of Saybrook Mfg., 963 F.2d at 1493 ("By its own terms, section 364(e) is only applicable if the challenged lien or priority was authorized under section 364.")

Subsection (c) authorizes the court to allow "the obtaining of credit or the incurring of debt" by the County23 if it is unable to obtain unsecured credit. 11 U.S.C. § 364(c). This subsection authorizes the County to obtain credit or incur debt with one of three conditions: (1) the postpetition credit or debt has priority over other administrative expenses; (2) the postpetition credit or debt is secured by a lien on unencumbered property; or (3) the postpetition credit or debt is secured by a junior lien on encumbered property. Id. If the County is unable to secure credit under (c), the bankruptcy court may authorize it to obtain credit or incur debt that has a senior or equal lien on encumbered property if the holder of the lien on the property is adequately protected. 11 U.S.C. § 364(d)(1). Neither subsection (c) nor subsection (d) authorizes the bankruptcy court to allow the County to obtain credit or incur debt by giving the lender or the bankruptcy court unlawful or unconstitutional rate-making authority.

Moreover, subsection (e) by its terms protects the specific forms of postpetition lending authorized by § 364. 11 U.S.C. § 364(e). Its protection is limited to the validity of the debt and the priority of the lien; these elements of postpetition debt may not be modified on appeal if a stay of the postpetition lending is not granted. Id.

To the extent the County seeks to shield all terms of the sale of the New Sewer Warrant on review by invoking § 364(e), the court will deny its Motion for Partial Dismissal based on statutory mootness.

3. Equitable Mootness

The County contends that the appeal of the Confirmation Order is due to be dismissed as "equitably moot" because Ratepayers did not obtain a stay of the Order pending appeal and the Plan has been "substantially consummated." It contends:

(Doc. 5 at 50-51.) Therefore, it argues reversing any part of the Confirmation Order would necessitate unwinding the entire Plan, which is legally and practically impossible at this point in time and which would threaten the County's emergence from bankruptcy.

"The doctrine of equitable mootness is a prudential, not a constitutional, doctrine that evolved in response to the particular necessities surrounding consummation of confirmed Chapter 11 bankruptcy reorganization plans." In re Bodenheimer, Jones, Szwak, & Winchell LLP, 592 F.3d 664, 668 (5th Cir.2009) (quoting In re Hilal, 534 F.3d 498, 500 (5th Cir. 2008)) (internal quotations omitted). This doctrine is called "equitable mootness" because its legitimacy does not rest on a specific provision of the Bankruptcy Code or on Article III of the Constitution, see In re Pacific Lumber Co., 584 F.3d 229, 240 (5th Cir.2009), but on "equitable considerations of finality and good faith reliance on a judgment," In re Lett, 632 F.3d at 1226 (quoting In re Club Associates, 956 F.2d 1065, 1069 (11th Cir.1992)). The problem with the doctrine's extension to this Chapter 9 case is twofold: (1) its application is "in some tension with [the Supreme Court's] recent reaffirmation of the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging," see Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (quoting Sprint Comm., Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976))) (internal quotations omitted);24 and (2) it is based on Chapter 11 concepts that may be inapplicable to or inappropriate for this Chapter 9 case, see In re Seidler, 44 F.3d 945, 947 n. 3 (11th Cir.1995). Although the Supreme Court's recent decisions seem to question the continued viability of prudential concerns as grounds for dismissal,25 this court need not decide whether equitable mootness remains viable in Chapter 11 proceedings, because it finds equitable mootness does not apply to challenges to a Confirmation Order in Chapter 9 proceedings.

Equitable mootness is a "judicial anomaly" best used as a "scalpel," In re Pacific Lumber Co., 584 F.3d 229, 240 (5th Cir.2009); it is the "exception and not the rule," In re Semcrude, L.P., 728 F.3d 314, 321 (3d Cir.2013). Courts frequently dealing with appeals of confirmation orders of Chapter 11 corporate reorganization plans have recognized that efficiency is of paramount importance to businesses in distress. Therefore, for private parties, courts are able to "strik[e] the proper balance between the equitable considerations of finality and good faith reliance on a judgment and the competing interests that underlie the right of a party to seek review of a bankruptcy court order adversely affecting him." See In re Club, 956 F.2d at 1069. Thus, when a Chapter 11 plan has been substantially consummated, no legal or factual error that threatens the entire deal is worth the cost of undoing the deal — it is too inefficient and unfair — and, therefore, the court need not even hear the arguments. When "a successful appeal would be fatal to a plan, prudence may require the appeal be dismissed because granting relief to the appellant would lead to a perverse outcome." In re Philadelphia Newspapers, LLC, 690 F.3d 161, 168 (3d Cir.2012), as corrected (Oct. 25, 2012), cert. dismissed, ___ U.S. ___, 133 S.Ct. 1001, 184 L.Ed.2d 777 (2013). But see Lexmark, 134 S.Ct. at 1388 ("Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, it cannot limit a cause of action that Congress has created merely because `prudence' dictates."). The judge-made doctrine of equitable mootness was developed for and should only be used when, "granting relief on appeal [is] almost certain to produce a perverse outcome — chaos in the bankruptcy court from a plan in tatters and/or significant injury to third parties. Only then is equitable mootness a valid consideration." In re Semcrude, L.P., 728 F.3d 314, 320 (3d Cir.2013) (internal citations omitted).

The County contends that the doctrine of equitable mootness should apply in Chapter 9 appeals exactly as it applies in Chapter 11 appeals.26 The Eleventh Circuit has held that "`substantial consummation' is a chapter 11 concept," and that the concept was inapplicable to this chapter 13 case." In re Seidler, 44 F.3d at 947 n. 3 (citing 11 U.S.C. 1101(2) and 103(f)).27 This court finds that "equitable mootness" is not applicable in a Chapter 9 appeal challenging terms of the Confirmation Order as unconstitutional although all remedies may not be available to the appellants.

In 1977, the House Report on the new Bankruptcy Act identified "two major differences [between Chapter 9, municipal reorganization, and Chapter 11,] general reorganization law: first, the law must be sensitive to the issue of the sovereignty of the States; [and] second, a municipality is generally not a business enterprise operating for profit, and there are no stockholders."28 H.R.Rep. No. 95-595, at 263 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6221. "The bankruptcy of a public entity," such as the County, "is different from that of a private person or concern. Unlike any other chapter of the Bankruptcy Code, Chapter 9 places federal law in juxtaposition to the rights of states to create and govern their own subdivisions." In re City of Colorado Springs Spring Creek Gen. Imp. Dist., 177 B.R. 684, 693 (Bankr.D.Colo.1995). This difference between Chapter 9 and other bankruptcies requires courts to recognize that Congress enacted Chapter 9 in a "constitutional balance" that contemplates "the delicacies of the state-federal relationship." In re City of Stockton, Cal., 478 B.R. 8, 23 (Bankr. E.D.Cal.2012). Prudential concerns, created in response to complex, but private, corporate reorganizations, cannot insulate a bankruptcy court's decision on constitutional issues involving public governmental entities.

The prudential concerns of a Chapter 9 plan are different from the prudential concerns of a Chapter 11 plan. "[T]wo policies underlying Chapter 11" are "preserving going concerns and maximizing property available to satisfy creditors." Bank of Am. Nat. Trust & Sav. Ass'n v. 203 N. LaSalle St. P'ship, 526 U.S. 434, 453, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999). The policy underlying Chapter 9 "is not future profit, but rather continued provision of public services." In re Mount Carbon Metro. Dist., 242 B.R. 18, 34-35 (Bankr.D.Colo.1999). These major differences in the purposes of Chapter 9 and Chapter 11 reorganizations alter analysis of whether equitable considerations should factor into this court's decision to hear the Ratepayers' appeal. Cf. In re City of Desert Hot Springs, 339 F.3d 782, 789 (9th Cir.2003)("[S]ignificant differences between a chapter 11 bankruptcy and a chapter 9 bankruptcy ... change the analysis of the question of finality...."). The County asserts that the "equitable-mootness doctrine exists to promote finality," (doc. 5 at 64), but it does not acknowledge that the equitable mootness doctrine requires a weighing of "finality and good faith reliance" against "competing interests that underlie the right of a party to seek review of a bankruptcy court order adversely affecting him," see In re Club, 956 F.2d at 1069. In the case of a Chapter 9 reorganization plan — finality and reliance may be required to yield to the Constitution and the interest of the public in the provision of governmental services.

In this case, one of the costs of finality is to allow a non-Article III court to decide important constitutional questions that place substantial future financial obligations on the citizens of Jefferson County without representation. The court notes that the County once argued that a predecessor to this case presented "knotty state-law questions," including "whether a county can validly alienate its ratemaking power in an ordinary contract, without some form of legislative authorization if not a vote of the citizens." See Bank of New York Mellon v. Jefferson County, Case No. 08-CV-1703-RDP, doc. 77 at 10-12 (N.D.Ala. Mar. 23, 2009) (Jefferson County's Motion to Stay). The County argued that important issues of federalism, which were enshrined in law in various abstention doctrines, should cause a federal court to decline hearing the very questions that the bankruptcy court seemingly decided, see id., and the district court agreed, see, e.g., id., doc. 100 at 53 (N.D. Ala. June 12, 2009); see also In re Cottonwood Water & Sanitation Dist., Douglas Cnty., Colo., 138 B.R. 973, 979 (Bankr.D.Colo.1992) ("[M]unicipal bankruptcies involve significant problems which are not encountered in the private sector. Important constitutional issues arise when a municipality enters the bankruptcy arena."); 11 U.S.C. § 943(b)(6) (requiring "electoral approval necessary under applicable nonbankruptcy law in order to carry out any provision of the plan"). However, applying the doctrine of equitable mootness as the County espouses, would prevent both state and federal Article III courts from deciding those "knotty state law" and constitutional issues and would prevent any review of a federal bankruptcy court's assumption of jurisdiction to enforce its unreviewed actions. See In re Pacific Lumber Co., 584 F.3d 229, 243 (5th Cir.2009) (declining to dismiss appeal as equitably moot and noting that "[f]ederal courts should proceed with caution before declining appellate review of the adjudication of [constitutional] rights under a judge-created abstention doctrine.").

Although this court agrees that some part or parts of the Confirmation Order may be impossible to reverse, the County's ceding of its future authority to set sewer rates to the bankruptcy court as a term of the New Sewer Warrants is not one of those parts. If, as the Ratepayers contend, this part of the Confirmation Order is unconstitutional, this court may so declare and prohibit enforcement of that term. A similar constitutional issue would not arise in private contracts under a Chapter 11 plan.

Because Chapter 11 concerns private business entities, the good faith reliance of private investors on the bargains that bring about voluntary reorganization plans are treated with deference, and courts may refuse to undo these agreements when equity so demands. See Miami Center II, 838 F.2d at 1556. In proposing the adoption of a Chapter 11 perspective in this Chapter 9 case, the County points out the inequity to the purchasers of the New Sewer Warrants. However, because the County is a political subdivision of the State of Alabama, significant public interests are at stake.29 The Ratepayers are not investors or shareholders whose stake in this case is limited to the amount of their investment; they are citizens of the County dependant upon the County for provision of basic sewer service. As such, they are the revenue source for payment of the New Sewer Warrants; however, their interest is not limited to a finite financial amount.30 Rather, their interest in continuing to receive essential sewer service is not protected by the political system of County governance nor do they have a voice in future rate-making. As the Alabama Attorney General recognized in seeking to intervene on behalf of the then-unrepresented ratepayers in a state court case preceding the bankruptcy, the outcome of this litigation "will have a substantial impact on the rights of ratepayers and their ability to obtain service at just and reasonable rates from a public utility which is a monopoly provider." Bank of New York Mellon v. Jefferson County, Alabama, No. CV-2009-2318, Motion to Intervene at ¶ 3; see also Press Release, Luther Strange, Alabama Attorney General, AG Seeks to Intervene in Jefferson County Sewer Case (June 15, 2011), available at http://www.ago.state.al.us/News-66.

In light of the public and political interests at stake in any Chapter 9 proceedings, the court will deny the County's appeals to equity to allow allegedly unconstitutional provisions of the Confirmation Order to stand without review.

Even if the court considered equitable mootness as appropriate in Chapter 9 proceedings, the court would, nevertheless, deny the County's motion to dismiss.

Davis v. Shepard, 2014 WL 2768808, *6 (N.D.Ala.2014). As set forth above, the court finds that it can grant some relief to the Ratepayers, if successful on appeal, in the form of striking any allegedly unconstitutional terms in the Confirmation Order regarding the bankruptcy court's authority to set the rates for sewer service.

In a Chapter 11 reorganization, the appellants' failure to obtain a stay of the confirmation order pending appeal is a significant, but not dispositive, factor in favor of dismissing an appeal as equitably moot.31 (See doc. 5 at 65-67.) In this case, the court finds that seeking a stay was futile and cost-prohibitive.

The County successfully moved the bankruptcy court to waive the automatic fourteen-day stay and now complains that the Ratepayers, who sought an appeal nine days after confirmation, should have opposed their motion. In this case the County has admitted that it "intend[ed] to close [the deal on the sewer warrants], if the court confirms ... and to moot out any appeal." (Transcript of Nov. 20, 2013 hearing at 7-8.) The bankruptcy court also expressed its intention that the Plan be consummated quickly; at the confirmation hearing, it stated:

(Transcript of Nov. 21, 2013 hearing at 840-41.) This court is not inclined to dismiss Ratepayers' appeal as "equitably moot" based on the rush to consummation. See In re Paige, 584 F.3d 1327, 1343 (10th Cir.2009) ("[W]here, as here, the parties attempting to convince the court not to reach the merits have accelerated the consummation of the plan despite their knowledge of a pending appeal — in this case, by waiving the requirement that the consummation await the resolution of all pending appeals — we are less inclined to grant their wish that the court abstain from reaching the merits on appeal."). Under the circumstances, no stay would have been granted even if Ratepayers had moved the court and somehow were capable of obtaining an appeal bond.32

The Plan, as confirmed, conditioned its Effective Date on the Plan not being subject to any stay. (B. Doc. 2182 at 78.) In fact, any stay would have allowed the purchasers of the New Sewer Warrants to back out of the deal entirely, mooting the confirmation of the Plan. (Doc. 24 at 16.) In the face of the bankruptcy court's stated concerns and the Plan's express provisions, a motion for a stay pending appeal would have been futile. Equity does not require futile gestures. Munchak Corp. v. Cunningham, 457 F.2d 721, 725 (4th Cir. 1972) ("Equity does not require the doing of a futile act as a condition to the granting of equitable relief.") (citation omitted); Stewart v. United States, 327 F.2d 201, 203 (10th Cir.Wyo.1964)("But, equity will not require a useless thing, or insist upon an idle formality.").

In short, the fact that "the Bennett Ratepayers did nothing," to stay the consummation of the Plan is not "particularly inexcusable" to this court. (See doc. 5 at 66 [emphasis in original].) The equitable considerations for mooting an appeal in a Chapter 11 case are not the same in a Chapter 9 case. Here, the equities lie with the Ratepayers, and the questions they raise about the legality and constitutionality of the Confirmation Order affect public and political interests — not merely private interests — and, thus, counsel for Article III review of the Confirmation Order.

The County's Motion for Partial Dismissal will be denied as to its contention that the Ratepayers' appeal of the Confirmation Order is equitably moot.

4. Motion to Dismiss Appeal of Orders in the Adversary Proceedings and Motion to Consolidate

The County argues that the Ratepayers cannot "include in the present appeal [Case No. 2:14-CV-213-SLB] challenges to the adversary-proceeding orders because this matter, which is an appeal in the County's main bankruptcy case, is not an appeal in the adversary proceedings." (Doc. 5 at 73.) The court notes that the Ratepayers' Statement of the Issues on Appeal filed in the "main" bankruptcy case, (doc. 1-7), contains issues related to orders in two adversary proceedings — AP No. 12-0016-TBB [hereinafter AP 16] and AP No. 12-0120-TBB [hereinafter AP 120]. The Notice of Appeal states the Ratepayers are appealing the following orders:

(Doc. 1-3 at 1-4 [emphasis added].)

"Adversary proceedings are separate lawsuits from which separate appeals may lie. Accordingly, separate notices of appeal must be filed with regard to each separate adversary proceeding." In re Robinson, 196 B.R. 459, 460 n. 2 (Bkrtcy. E.D.Ark.,1996), cited in doc. 5 at 73. Ratepayers filed three Notices of Appeal in the bankruptcy court and filed three appeals in this court — Case Nos. 2:14-CV-0213-SLB; 2:14-CV-0214-SLB; and 2:14-CV-0215-SLB. The Notice of Appeal in this case, which purports to be the appeal of the Confirmation Order and denial of the Ratepayers' proof of claim, lists documents from the adversary proceedings, each of which is the subject of its own appeal.

In response to the County's Motion to Dismiss, Ratepayers filed a Motion to Consolidate. (Doc. 14.) Consolidating Ratepayers' appeals would not allow them to raise every issue in each of their cases, which appears to be their desire. Indeed given the unfocused nature of their issues and their briefs, the court finds limiting Ratepayers to specific issues in specific appeals may aid the court in their resolution far more than consolidating the cases. Therefore, the Ratepayers' Motion to Consolidate, (doc. 14), will be denied.

The court will grant the County's Motion to dismiss from this case Ratepayers' appeal of the orders entered in the adversary proceedings. Specifically, this court will not consider on appeal in this action:

(1) Order Severing Complaint in Intervention and Motion for Class Certification, AP 16, doc. 139, and/or the related documents a-g;

(2) Order Denying Motion to Reconsider, AP 120, doc. 108, and/or related documents AP 120, doc. 98; and

(3) Order granting request for stay, AP 120, doc. 95, and/or related document AP 120, docs. 92.

CONCLUSION

For the foregoing reasons, the court is of the opinion that the Ratepayers' appeal is not moot; therefore the County's Motion to Dismiss the appeal as moot will be denied. The Motion to Dismiss the Ratepayers appeal of orders entered in the Adversary Proceedings will be granted. The Ratepayers' Motion to Strike and Motion to Consolidate will be denied. An Order denying in part and granting in part the County's Motion for Partial Dismissal, (doc. 4); denying the Ratepayers' Motion to Consolidate, (doc. 14); and denying their Motion to Strike, (doc. 15), will be entered contemporaneously with this Memorandum Opinion.