United States v. Warfield ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, No. CV-20-08204-PCT-DWL 10 Appellant, ORDER 11 v. 12 Lawrence J Warfield, et al., 13 Appellees. 14 15 This is a bankruptcy appeal. In April 2021, the Court affirmed the bankruptcy 16 court’s grant of summary judgment to the Trustee. (Doc. 17.) However, in November 17 2022, the Ninth Circuit concluded that the bankruptcy court erred in granting the Trustee’s 18 motion. (Doc. 25-1.) The last sentence of the majority opinion stated: “REVERSED and 19 REMANDED to the District Court with instructions for further proceedings consistent with 20 this order.” (Id. at 29.) Finally, in October 2023, after a lengthy delay apparently brought 21 about by the Trustee’s request for rehearing or rehearing en banc, the Ninth Circuit issued 22 the mandate. (Doc. 25.) Afterward, this Court issued an order explaining that “[i]t appears 23 that the only appropriate step is to simply remand this action to the bankruptcy court for 24 further proceedings consistent with the Ninth Circuit’s opinion. However, before pursuing 25 that course of action, the Court will give the parties an opportunity to be heard. If any party 26 believes the Court should follow a different course of action, it may file a notice to that 27 effect . . . . If no party files such a notice, the Court will proceed with its plan to remand 28 to the bankruptcy court.” (Doc. 26.) 1 On December 6, 2023, in response to the Court’s order, the Trustee filed a notice 2 explaining that “he will be filing a petition for a writ of certiorari with the United States 3 Supreme Court asking that court to accept jurisdiction and reverse the ruling of the Ninth 4 Circuit Court of Appeals. Consequently, appellee does not believe that a further remand 5 to the bankruptcy court is warranted at this time.” (Doc. 27.) About a week later, on 6 December 14, 2023, the Trustee provided a copy of the certiorari petition he had just filed 7 in the Supreme Court. (Doc. 28.) The United States has not responded to either filing. 8 These developments create an unusual situation. The Trustee is effectively seeking 9 a stay of this action pending the resolution of his certiorari petition. On the one hand, such 10 a request is ordinarily made by filing a motion with the circuit court before the issuance of 11 the mandate. See Fed. R. App. P. 41(d)(1) (“A party may move to stay the mandate pending 12 the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be 13 served on all parties and must show that the petition would present a substantial question 14 and that there is good cause for a stay.”); United States v. Pete, 525 F.3d 844, 850 n.9 (9th 15 Cir. 2008) (same). The Trustee did not follow that approach here. Nor is it clear that this 16 Court possesses the same power to issue a stay pending the resolution of a certiorari petition 17 as a circuit court. Under Rule 8025(b) of the Federal Rules of Bankruptcy Procedure, a 18 district court is empowered to issue a “stay pending appeal to the court of appeals,” but 19 that stay only “continues until final disposition by the court of appeals.” In contrast, under 20 Rule 8025(d), “the power of a court of appeals or any of its judges” to issue a stay is “not 21 limited.” The juxtaposition of these two provisions—where district judges overseeing 22 bankruptcy appeals are only given the limited authority to issue a stay pending an appeal 23 to the court of appeals, while circuit judges overseeing bankruptcy appeals have unlimited 24 stay-issuance powers—raises an inference that district courts do not possess the authority 25 to issue a post-remand stay pending the resolution of a certiorari petition. See generally 26 Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc) 27 (“The doctrine of expressio unius est exclusio alterius as applied to statutory interpretation 28 creates a presumption that when a statute designates certain persons, things, or manners of 1 operation, all omissions should be understood as exclusions.”) (quotation omitted). 2 On the other hand, assuming that the Court does possess the power to issue the 3 requested stay and that the request is governed by the same standards that would have 4 applied had the Trustee sought relief from the Ninth Circuit, those standards are not 5 particularly onerous. Although a stay request pending the resolution of a certiorari petition 6 should not be granted as a matter of course, the movant is not required to establish the 7 existence of exceptional circumstances. See, e.g., 9th Cir. R. 41-1 (“[A] motion for stay of 8 mandate pursuant to FRAP 41(d), pending petition to the Supreme Court for certiorari, will 9 not be granted as a matter of course, but will be denied if the Court determines that the 10 petition for certiorari would be frivolous or filed merely for delay.”); Campbell v. Wood, 11 20 F.3d 1050, 1051 (9th Cir. 1994) (emphasizing that “ordinarily a party need not 12 demonstrate that exceptional circumstances justify a stay of the mandate” while a certiorari 13 petition is pending); Bryant v. Ford Motor Co., 886 F.2d 1526, 1528-29 (9th Cir. 1989) 14 (“Ordinarily, then, a party seeking a stay of the mandate following this court’s judgment 15 need not demonstrate that exceptional circumstances justify a stay. The situation changes 16 markedly, however, once the Supreme Court has denied the petition for a writ of 17 certiorari.”). Additionally, and perhaps most important, it’s not clear that the United States 18 even opposes the Trustee’s stay request here. 19 Under the circumstances, the Court concludes that the most prudent course of action 20 is to treat the Trustee’s recent filings as a stay request. In an abundance of caution, the 21 Court will also afford the United States a final opportunity to be heard in opposition to that 22 request. If the United States does not respond, the stay request will be granted 23 (notwithstanding some of the concerns raised above) pursuant to LRCiv 7.2(i), which 24 authorizes the Court to summarily grant any unopposed motion. See LRBankr 8018-1 (“In 25 cases where these Local Rules of Bankruptcy Appeal Procedure and the FRBP are silent 26 as to a particular matter of practice relating to a bankruptcy appeal, the District Court may 27 apply . . . this Court’s Local Rules of Civil Procedure . . . .”). 28 … 1 Accordingly, 2 IT IS ORDERED that the Trustee’s recent filings (Docs. 27, 28) are construed as || request for stay. The United States has until January 4, 2024 to file a response. If no 4|| response is filed, the stay request will be granted summarily pursuant to LRCiv □□□□□□□ 5 Dated this 18th day of December, 2023. 6 — 8 "Dominic W. Lanza 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-