Filed: Mar. 24, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-20035 Document: 00512570508 Page: 1 Date Filed: 03/24/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-20035 FILED March 24, 2014 Lyle W. Cayce In the Matter of: YAZOO PIPELINE COMPANY, L.P., Clerk Debtor - OKIN ADAMS & KILMER, L.L.P., Appellant v. JOSEPH M. HILL, Trustee, Appellee Appeal from the United States District Court for the Southern District of Texas Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges. JAMES E.
Summary: Case: 13-20035 Document: 00512570508 Page: 1 Date Filed: 03/24/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-20035 FILED March 24, 2014 Lyle W. Cayce In the Matter of: YAZOO PIPELINE COMPANY, L.P., Clerk Debtor - OKIN ADAMS & KILMER, L.L.P., Appellant v. JOSEPH M. HILL, Trustee, Appellee Appeal from the United States District Court for the Southern District of Texas Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges. JAMES E. ..
More
Case: 13-20035 Document: 00512570508 Page: 1 Date Filed: 03/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20035
FILED
March 24, 2014
Lyle W. Cayce
In the Matter of: YAZOO PIPELINE COMPANY, L.P., Clerk
Debtor
------------------------------
OKIN ADAMS & KILMER, L.L.P.,
Appellant
v.
JOSEPH M. HILL, Trustee,
Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
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.
Case: 13-20035 Document: 00512570508 Page: 2 Date Filed: 03/24/2014
No. 13-20035
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.
FACTS AND PROCEDURAL HISTORY
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 debtors incurred significant
unauthorized administrative claims and failed to timely file their first few
monthly operating reports with the bankruptcy court. (R. 3206–07). During
this time, OAK was exploring the potential of selling an interest in the debtor
companies or the companies’ assets with several entities, but the sales were
never completed. (R. 3208–09). By early June 2009, the bankruptcy court
became aware that the debtors’ unauthorized expenses had significantly
exceeded the estimates in the budgets filed with and approved by the court. (R.
3209).
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
2
Case: 13-20035 Document: 00512570508 Page: 3 Date Filed: 03/24/2014
No. 13-20035
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. 1
(R. 3213). Following the rule in In re Pro-Snax, 2 the bankruptcy court denied
most of OAK’s attorney’s fees request, finding that only three categories of
OAK’s services had actually resulted in an identifiable, tangible, and material
benefit to the debtors’ estate. 3 (R. 3217). The bankruptcy court issued its final
order on May 20, 2010 awarding OAK $60,000 in fees and expenses. (R. 3217).
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
1OAK’s nine categories were: (1) case administration; (2) asset disposition; (3) relief
from stay/adequate protection proceedings; (4) meeting of and with creditors; (5)
fee/employment applications; (6) other contested matters; (7) financing/cash collateral; (8)
claims administration and objections; and (9) plan and disclosure statement. (R. 3213).
2 In In re Pro-Snax, this Court held that attorney’s fees were only compensable if the
legal services “resulted in an identifiable, tangible, and material benefit to the bankruptcy
estate.” 157 F.3d 414, 426 (5th Cir. 1998).
3 The bankruptcy court found that the following three categories of OAK’s fees were
compensable under the Pro-Snax rule: (1) the initial review to learn the issues and facts of
the cases; (2) negotiations with the State of Texas General Land Office to resolve a dispute
over four oil and gas leases and over past-due royalties; (3) and OAK’s work with respect to
debtor-in-possession funding. (R. 3217).
3
Case: 13-20035 Document: 00512570508 Page: 4 Date Filed: 03/24/2014
No. 13-20035
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:
The fee application OAK submitted included a summary of [] hours
spent on professional services on the debtors’ behalf from January
9 to December 8, 2009. The summary divides the work into nine
categories . . . . These categories do not track or correspond to the
three categories of legal services the bankruptcy court found
compensable. . . . The 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. Because the record does
not reveal the connection between the $60,000 awarded and the
hours expended or the result obtained, the fee amount is reversed
and this case is 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.
(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.
4
Case: 13-20035 Document: 00512570508 Page: 5 Date Filed: 03/24/2014
No. 13-20035
STANDARD OF REVIEW
“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).
DISCUSSION
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 deciding whether the remand requires “extensive further proceedings” in
5
Case: 13-20035 Document: 00512570508 Page: 6 Date Filed: 03/24/2014
No. 13-20035
the bankruptcy court. Pro-Snax, 157 F.3d at 420. If a district court’s remand
order requires extensive further proceedings in the bankruptcy court, then this
Court does not view the district court’s order as final, and thus it is not
appealable. See In re Caddo Parish-Villas S., Ltd.,
174 F.3d 624, 628 (5th Cir.
1999) (“A long, unbroken line of cases establishes the general rule in this
circuit that a district court order is not a final order under section 158(d) where
that order reverses an order of the bankruptcy court and remands the case to
the bankruptcy court for significant further proceedings.”). “In determining
what constitutes ‘significant further proceedings,’ we distinguish between
those remands requiring the bankruptcy court to perform ‘judicial functions’
and those requiring mere ‘ministerial functions.’” In re Cortez,
457 F.3d 448,
453 (5th Cir. 2006) (citation omitted).
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”).
6
Case: 13-20035 Document: 00512570508 Page: 7 Date Filed: 03/24/2014
No. 13-20035
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. App’x 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 F. App’x 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 court ordered the bankruptcy court to
perform further factual development of OAK’s fee request upon remand when
it stated that “the fee amount is reversed and this case is 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
7
Case: 13-20035 Document: 00512570508 Page: 8 Date Filed: 03/24/2014
No. 13-20035
services.” 4 (R. 3229–30). See Pratt, 524 F.3d at 585 (finding a remand order
was not final when it required the party seeking attorney’s fees to “submit
additional evidence regarding his fees”). The district court’s order also
required the bankruptcy court to exercise judicial discretion upon remand
when determining how the facts presented in OAK’s supplemental attorney’s
fees application apply to the three compensable categories of work outlined in
the district court’s opinion. (R. 3229–30). Given that the bankruptcy court
must perform additional fact-finding and exercise discretion when determining
an appropriate attorney’s fee award, the district court’s order requires the
bankruptcy court to perform judicial functions upon remand. 5 The district
court’s order is therefore not a final order, and as such, it is not appealable to
this Court. 6
4 The dissenting opinion maintains that the district court’s remand order did not
require further discovery in the bankruptcy court. We note, however, that the remand order
required OAK to submit additional documentation regarding its attorney’s fees.
5 The dissenting opinion suggests that the matter before the court is analogous to In
re Lift & Equipment Services, Inc., a case in which we found appellate jurisdiction despite a
district court’s remand order to the bankruptcy court for further calculation of legal fees. 816
F.2d 1013, 1016 opinion modified on reh’g,
819 F.2d 546 (5th Cir. 1987). Respectfully, we
disagree. The remand order in the instant case required OAK to submit further proof to the
bankruptcy court regarding the segregation of its fees, whereas no further documentation
was required in In re Lift & Equipment. As the opinion in In re Lift & Equipment Services
explains,
“[A]ll requests for payment of administrative and legal expenses have already
been approved and the disputed receivables have been accounted for and
segregated. What remains is merely the bankruptcy court’s review of the
scheduled expenses to determine which items should be deducted from the
accounts receivable . . . this is no more than a mechanical and ministerial task.”
Id. at 1016.
6 OAK asserts that the district court’s order is final and appealable because it only
required OAK to submit a supplemental attorney’s fee request in order to allow the
bankruptcy court to perform the accounting that the district court ordered, and that such an
accounting is a ministerial function. See OAK’s Letter Brief at 3. OAK is essentially asking
this Court to discount the judicial functions the bankruptcy court would be required to
perform upon remand―such as additional factual development and the exercise of judicial
discretion―because those judicial functions will enable the bankruptcy court to then perform
8
Case: 13-20035 Document: 00512570508 Page: 9 Date Filed: 03/24/2014
No. 13-20035
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 supplemental fee request and make a
determination of OAK’s fees based upon the three compensable categories of
legal services outlined in the district court’s opinion. Were either party to then
disagree with the bankruptcy court’s resolution of this issue, the result would
be a piecemeal appeal. Accordingly, our interest in preserving judicial
resources by avoiding piecemeal appeals further obligates us to decline
jurisdiction in this case.
CONCLUSION
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.
the ministerial function of calculating a new attorney’s fee award. We have previously held,
however, that “[w]hile in some cases the calculation of attorneys’ fees may be a ministerial
duty collateral to the merits of the action . . . a remand requiring such a calculation is not
final if it necessitates further factual development or other significant judicial activity
involving the exercise of considerable discretion.” Pro-Snax, 157 F.3d at 420.
9
Case: 13-20035 Document: 00512570508 Page: 10 Date Filed: 03/24/2014
No. 13-20035
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:
This case is remanded to the bankruptcy court to determine
the amount of time reasonably and actually spent on providing the
three categories of compensable legal services found in this case
and the reasonable fee for that work.
10
Case: 13-20035 Document: 00512570508 Page: 11 Date Filed: 03/24/2014
No. 13-20035
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 related to
initial case review. Each item of work occurred in March 2009. The dates and
brief summaries in the bankruptcy court’s order correspond to entries in the
20-plus pages of billing records that OAK filed in April 2010. That original fee
application is in the appellate record. This is not a determination based on
new evidence. It is a decision based on old evidence, resubmitted by OAK.
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
11
Case: 13-20035 Document: 00512570508 Page: 12 Date Filed: 03/24/2014
No. 13-20035
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, 1 stated that the district court’s order remanding a case
to bankruptcy court would be appealable if two conditions were met:
For the order to be appealable, the game must really be over. To
determine whether a remand by a district court really signals the
end of the game, we must follow a two step inquiry. First, we must
ask whether the order of the bankruptcy court itself is final in
character, and second, if it is, we must ask if the remand by the
district court requires extensive further proceedings. The answer
to the first question must be in the affirmative while the answer to
the second question must be in the negative.
1 Judge Irving Goldberg swung for the fences when he used the national pastime as a
metaphor for understanding bankruptcy appellate jurisdiction. “A paradox of appellate
jurisdiction is that the season begins only after the game has ended. In baseball, it is easy to
tell when the game is over. In bankruptcy, Title 11 of the United States Code not only changes
the rules of the game, it reshapes the concept of game.” Matter of Greene Cnty. Hosp., 835
F.2d at 589 (footnotes omitted)).
12
Case: 13-20035 Document: 00512570508 Page: 13 Date Filed: 03/24/2014
No. 13-20035
Id. at 595 (citations omitted).
Whether the first factor is satisfied – was the bankruptcy court’s order
under review by the district court final in character – depends on whether it
resolved “a discrete unit in the larger case.” Id. I expect the majority agrees
that the first bankruptcy court order reviewed by the district court was final
in character; it was the final establishment of the attorneys’ fees in this case.
The second factor – does the remand by the district court require extensive
additional proceedings – is the focus of this dissent.
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.
13
Case: 13-20035 Document: 00512570508 Page: 14 Date Filed: 03/24/2014
No. 13-20035
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:
While the record in the instant case is unclear as to the
specific proceedings which will be required on remand, counsel
agreed at oral argument that all requests for payment of
administrative and legal expenses have already been approved
and the disputed receivables have been accounted for and
segregated. What remains is merely the bankruptcy court’s review
of the scheduled expenses to determine which items should be
deducted from the accounts receivable, rather than from the other
assets. In the posture presented herein, this is no more than a
mechanical and ministerial task. Appellate jurisdiction lies.
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 entitled to give their explanations
of how the remand order operated on the evidence already submitted. Here,
OAK was ordered to identify the relevant billing entries in the prior fee
application. I do not see that the district court’s requiring OAK to make the
14
Case: 13-20035 Document: 00512570508 Page: 15 Date Filed: 03/24/2014
No. 13-20035
initial culling of its prior bill to be significant. What is important is that on
remand, the bankruptcy court had to take what was already in evidence and
apply the district court’s definition of appropriate compensation to it.
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:
The likelihood that the proceedings on remand will moot, or at
least alter, the issues that would be raised on an appeal from the
liability determination, or will raise new issues for appeal and thus
lead to multiple appeals if the order on liability is appealable, is
too great to make an immediate appeal efficient.
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.),
15
Case: 13-20035 Document: 00512570508 Page: 16 Date Filed: 03/24/2014
No. 13-20035
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 not to say that when the time to appeal
the ruling on remand has expired prior to our deciding the jurisdiction
question, we are always justified in accepting the appeal of the remainder of
the district court’s order. Instead, I suggest that, after looking at the totality
of the circumstances in the current case, it is reasonable to conclude that the
remand was limited to computational tasks, was unlikely to be appealed, and
would not affect the issues on this appeal.
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
16
Case: 13-20035 Document: 00512570508 Page: 17 Date Filed: 03/24/2014
No. 13-20035
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
17
Case: 13-20035 Document: 00512570508 Page: 18 Date Filed: 03/24/2014
No. 13-20035
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
dispose of an indemnification issue that had been remanded to the bankruptcy
court and could lead to another appeal. Here, OAK’s appeal arises from one
issue, the district court’s determination that fees were compensable in only
three categories. The district court’s remand was for calculation of fees in those
categories based on existing evidence. An appeal from the bankruptcy court’s
decision was unlikely. The bankruptcy court decision also would not impact
OAK’s appeal concerning the applicability and continued validity of Pro-Snax
in determining whether OAK’s services were compensable.
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.
18
Case: 13-20035 Document: 00512570508 Page: 19 Date Filed: 03/24/2014
No. 13-20035
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.
19
