An Overview of the Ninth Circuit Bankruptcy Appellate Panel and Its Reviewed Decisions During 2015

• Publication year: 2016
• Citation: Vol. 2016 No. 2
• Author: Peter J. Gurfein and Leib M. Lerner

An Overview of the Ninth Circuit Bankruptcy Appellate Panel and its Reviewed Decisions During 2015

Peter J. Gurfein and Leib M. Lerner¹

Peter J. Gurfein is an attorney with Landau, Gottfried & Berger, LLP. He specializes in Chapter 11 reorganization, related litigation, bankruptcy appeals, business and real estate transactions, and mediation. A past President of the LA Bankruptcy Forum and Chair of the Publications Subcommittee of the California State Bar Insolvency Law Committee, Mr. Gurfein received a B.A. from New York University and a J.D. from George Washington University School of Law.

Leib Lerner's practice is focused on representing franchisors, lenders, creditors' committees, avoidance action defendants, landlords, vendors, and investors involved in bankruptcy cases. He also represents insurance companies, corporations, and individuals in complex federal and state commercial litigation. Leib is a partner in Alston & Bird's Los Angeles office.

In 2015, 103 decisions rendered by the Ninth Circuit Bankruptcy Appellate Panel (the "BAP") were further appealed to the Ninth Circuit Court of Appeals (the "Ninth Circuit"). Many of these appeals were dismissed, settled, or otherwise withdrawn from the appellate process by the litigants themselves. But of those BAP cases that were decided by the Ninth Circuit in 2015, all were affirmed.

This article provides a brief overview of the structure of bankruptcy appellate procedure, identifies some of the key legal issues under the Bankruptcy Code that were addressed by the Ninth Circuit in its further review of BAP decisions in 2015, and suggests some reasons for the high affirmance rates of BAP decisions by the Ninth Circuit.

Bankruptcy Appellate Structure

Appellate review of Bankruptcy Court decisions is governed by § 158 of title 28 of the United States Code.² Under § 158(a), the district courts of the United States have jurisdiction to hear appeals from judgments, orders, and decrees of bankruptcy judges. In addition, under § 158(b) (1), the judicial conference of each circuit is authorized to establish a bankruptcy appellate panel composed of bankruptcy judges of the districts in the circuit to hear and determine, with the consent of all parties, appeals from bankruptcy court judgments, orders, and decrees. As of this writing, BAPs have been established by the Circuit Courts of Appeal in the First, Sixth, Eighth, Ninth, and Tenth Circuits. All parties have to consent to having the BAP hear an appeal or the appeal will be heard by the district court.

The circuit courts of appeal have jurisdiction to hear appeals from the federal district courts or from the bankruptcy appellate panels. Direct appeals from the bankruptcy court to the circuit court may be had upon certification by the trial judge that the appeal meets certain criteria set forth in § 158(d)(2)(A) of title 28: (1) the judgment, order, or decree involves a question of law unresolved by courts of appeal or the Supreme Court and involves a matter of public importance; (2) the order, judgment, or decree involves a question of law requiring resolution of conflicting decisions; or (3) an immediate appeal to the circuit court may materially advance the progress of the case or proceeding in which the appeal is taken.

Accordingly, the parties to a bankruptcy case can determine the venue in which an appeal will be heard by agreeing that the appeal be heard by a panel of bankruptcy judges or opting to have the appeal heard by a single judge of the federal district court.

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BAP Opinions as Precedent

The Ninth Circuit has long treated "the BAP's decisions as persuasive authority given its special expertise in...