Chorney v. Eastland Bank ( 1993 )

USCA1 Opinion

          February 5, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          Nos. 92-1780
               92-1781
               92-1782
            


                                  HAROLD F. CHORNEY,

                                      Appellant,

                                          v.

                                    EASTLAND BANK,

                                      Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Torruella and Cyr, Circuit Judges.
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               Harold F. Chorney on brief pro se.
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               Michael A. Silverstein, Sheryl  Serreze, Michelle A. Ruberto
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          and  Hinckley,  Allen, Snyder  & Comen  on  Memorandum of  Law in
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          Support of Motion for Summary Affirmance for appellee.



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                 Per  Curiam.   We have  consolidated three  appeals from
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            adverse orders in a bankruptcy proceeding in which the debtor

            is  Cumberland  Investment  Corporation.   Appellant,  Harold

            Chorney, was  a principal of the debtor.   Appellee, Eastland

            Bank ("Eastland") is the principal secured creditor. 

                 One appeal  challenges the  bankruptcy court's  order of

            January  17, 1991, denying Chorney's  demand for a  jury in a

            civil  contempt  action.    Another   appeal  challenges  the

            bankruptcy court's July 3, 1991 denial of Chorney's motion to

            hold the examiner in  contempt.  The third  appeal challenges

            the bankruptcy  judge's August  14, 1991 denial  of Chorney's

            motion that the judge disqualify himself from the case.

                  The district court granted  leave to appeal pursuant to

            its  discretion to  do  so  under 28  U.S.C.     158(a).   It

            affirmed all  three bankruptcy court orders,  and this appeal

            followed.

                  Although the  parties have not raised  the issue, "this

            court  has  an  obligation to  inquire  sua  sponte  into its

            subject matter jurisdiction."  In re Recticel Foam Corp., 859
                                           _________________________

            F.2d 1000,  1002 (1st  Cir. 1988).   Finding no  jurisdiction

            over these interlocutory appeals, we must dismiss.  

                 Appeal  to  this   court  of  interlocutory  orders   in

            bankruptcy  is not permitted by   158, which grants to courts

            of  appeals   jurisdiction  only  over   appeals  from  final
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            decisions, orders, and decrees.   28 U.S.C.   158(d);  see In
                                                                   ___ __

            re American  Colonial Broadcasting  Corp., 758 F.2d  794, 800
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            (1st  Cir. 1985).    Because of  the flexible  interpretation

            accorded "finality"  in bankruptcy cases, this  court has not

            ruled out the possibility  that a unique case might  arise in

            which a  district court's  appellate decision under    158(a)

            might be final for purposes of  appeal to this court under   

            158(d), despite  the interlocutory  nature of  the underlying

            bankruptcy order.   See In  re G.S.F. Corp.,  938 F.2d  1467,
                                ___ ___________________

            1473 (1st  Cir. 1991).  But this is not such an unusual case.



                 The orders challenged  here involved interim  procedural

            steps affecting only the  manner in which further proceedings

            on  the merits would be conducted.  They did not conclusively

            determine  a "separable  dispute over  a creditor's  claim or

            priority,"  nor   leave  only   "ministerial"  tasks   to  be

            accomplished in any  separable judicial  unit or  proceeding.

            In re Saco Local Dev. Corp.,  711 F.2d 441, 445-46 (1st  Cir.
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            1983);  see also Tringali v. Hathaway Mach. Co., 796 F.2d 553
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            (1st  Cir. 1986).    Nor  did  the  district  court's  orders

            terminate the federal courts' involvement in the entire case,

            or  any significant aspect  of it.   In re  G.S.F. Corp., 938
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            F.2d at 1473.   And, based on the partial  record supplied by

            appellant,   these  orders  are  not  appealable  "collateral

            orders" under  the doctrine announced in  Cohen v. Beneficial
                                                      _____    __________

            Industrial Loan Corp.,  337 U.S.  541 (1949).   There do  not
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            appear  to  be  any  "important and  unsettled  questions  of



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            controlling   law",   nor   are   the   orders   "effectively

            unreviewable" on appeal from a final judgment.  United States
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            v. Sorren, 605  F.2d 1211, 1213 (1st Cir. 1979);  see also In
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            re M.S.V., Inc., 892 F.2d 5, 7 (1st Cir. 1989)  (quoting from
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            Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).   
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                 The Supreme  Court recently  concluded that 28  U.S.C.  

            158  is  not  the exclusive  provision  governing  bankruptcy

            appellate  jurisdiction.    In  Connecticut   Nat'l  Bank  v.
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            Germain, 503 U.S. ___, 112 S. Ct. 1146 (1992), the Court held
            _______

            that following appeal from an interlocutory bankruptcy  order

            to the  district court under    158(a), further discretionary

            review might then be sought in the court of  appeals under 28

            U.S.C.    1292(b).  However,  this avenue, too,  is closed to

            appellant, as   1292(b)  grants discretionary jurisdiction to

            the court  of appeals only  if the  district court  certifies

            that the case involves  "a controlling question of law  as to

            which  there  is  a  substantial  ground  for  difference  of

            opinion,"   and  an   immediate  resolution  by   appeal  may

            "materially   advance"  the   ultimate  termination   of  the

            litigation.   Although appellant's failure to  expressly seek

            such a certificate here might be held to be a waiver, we need

            not  decide that question, for contrary to the allowance in  

            1292(b), the  district  court expressly  determined that  the

            only legal issues raised were simple, and easily  disposed of





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            on  the merits.1    Finally, as  it  appears that  there  are

            available  adequate alternative appellate  processes, we have

            no occasion consider  these appeals under the  All Writs Act,

            28 U.S.C.   1651.

                 For the foregoing reasons,  these appeals are  dismissed
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            without prejudice.   Since we  have no jurisdiction,  we also
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            deny  appellant's motion  to supplement  the record  with new
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            evidence.   Appellee's  request  for costs  and sanctions  is
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            denied.
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            1.  Unlike 28  U.S.C.   1292(b),   158(a) does not  set forth
            express  standards to  guide  the district  court's grant  of
            leave to appeal from an interlocutory bankruptcy order to the
            district court.   In the absence of an  express certification
            under   1292(b),  then, we  would  not  ordinarily  be  in  a
            position to conclude  that a district court's  grant of leave
            to  take  a first  stage  appeal  under  158(a),  necessarily
            included consideration  of the issues relevant  to a  1292(b)
            certificate.  In this  case, the district court's articulated
            reasons for  granting leave under    158(a) included findings
            opposed  to  those  required   for  issuance  of  a   1292(b)
            certificate,  and so  we  need not  reach  the further  issue
            whether  appellant's   failure   to  seek   the   certificate
            effectively waived his right to do so.

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