Charles Gugliuzza, II v. FTC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE CHARLES FRANCIS No. 15-55510
GUGLIUZZA, II,
Debtor, D.C. No.
8:14-cv-01529-
CJC
CHARLES FRANCIS GUGLIUZZA, II,
Appellant,
OPINION
v.
FEDERAL TRADE COMMISSION,
Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 7, 2016
Pasadena, California
Filed March 24, 2017
Before: Consuelo M. Callahan, Carlos T. Bea,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 IN RE GUGLIUZZA
SUMMARY*
Bankruptcy
Dismissing an appeal, the panel held that it lacked
jurisdiction to review the district court’s order, which
reversed in part a bankruptcy court’s grant of summary
judgment against a bankruptcy debtor and remanded for
further fact-finding in an adversary proceeding brought by the
Federal Trade Commission.
The FTC sought a determination that a restitution debt
arising from an FTC enforcement action was
nondischargeable under 11 U.S.C. § 523(a)(2)(A). The
district court held that the bankruptcy court correctly
concluded that the debtor was collaterally estopped from
relitigating four of the five elements necessary to prove
nondischargeability under § 523(a)(2)(A), but had erred in
holding that the debtor was collaterally estopped from
relitigating the issue of his intent to deceive consumers. The
district court affirmed in part, reversed in part, and remanded
the case to the bankruptcy court for further fact-finding on the
issue of the debtor’s intent to deceive.
The panel held that it lacked jurisdiction under 28 U.S.C.
§ 1291 because the district court’s judgment did not end the
litigation on the merits. The panel lacked jurisdiction under
28 U.S.C. § 1292 because the district court did not certify its
decision for interlocutory review.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE GUGLIUZZA 3
The panel held that it also lacked jurisdiction under 28
U.S.C. § 158(d)(1), which gives courts of appeals jurisdiction
of appeals from final bankruptcy decisions, judgments,
orders, and decrees of district courts and bankruptcy appellate
panels. The panel concluded that under Bullard v. Blue Hills
Bank, 135 S. Ct. 1686 (2015), and Sahagun v. Landmark
Fence Co. (In re Landmark Fence Co.), 801 F.3d 1099 (9th
Cir. 2015), the district court’s order did not alter the status
quo or fix the rights and obligations of the parties. The panel
held that Bonner Mall P’ship v. U.S. Bancorp Mortgage Co.
(In re Bonner Mall P’ship), 2 F.3d 899 (9th Cir. 1993) and its
progeny—which held that, for purposes of § 158(d)(1), final
decisions, judgments, orders, and decrees include district
court or BAP decisions remanding a central issue to the
bankruptcy court for further fact-finding so long as the appeal
raises a purely legal question or the decision on appeal could
materially aid the bankruptcy court in its decisionmaking
process—were inconsistent with Bullard and Landmark
Fence and therefore no longer binding.
COUNSEL
Michael B. Reynolds (argued) and Todd E. Lundell, Snell &
Wilmer LLP, Costa Mesa, California; Blaine H. Evanson, M.
Sean Royall, and Theodore J. Boutrous, Jr., Gibson Dunn &
Crutcher LLP, Los Angeles, California; for Appellant.
Michele Arington (argued), Kimberly Nelson, and Megan
Bartley, Attorneys; Joel Marcus, Director of Litigation;
Federal Trade Commission, Washington, D.C., for Appellee.
4 IN RE GUGLIUZZA
OPINION
IKUTA, Circuit Judge:
Charles Gugliuzza appeals the district court’s order
reversing a bankruptcy court’s grant of summary judgment
and remanding for further fact-finding. We conclude that we
lack jurisdiction and therefore dismiss the appeal.
I
The Federal Trade Commission (FTC) successfully
brought an enforcement action against Charles Gugliuzza and
his former company, Commerce Planet, alleging violations of
Section 5 of the FTC Act, 15 U.S.C. § 45(a). See FTC v.
Commerce Planet, Inc., 878 F. Supp. 2d 1048 (C.D. Cal.
2012). In assessing Gugliuzza’s liability, the district court
relied on the test set forth by the FTC in In re Cliffdale
Assocs., 103 F.T.C. 110 (1984), which we have generally
adopted, see FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th
Cir. 1994). Under this test, “an act or practice [is] deceptive
if, first, there is a representation, omission, or practice that,
second, is likely to mislead consumers acting reasonably
under the circumstances, and third, the representation,
omission, or practice is material.” Id. (quoting Cliffdale
Assocs., 103 F.T.C. at 164–65). Applying this standard, the
district court held that Commerce Planet had engaged in
deceptive acts and further determined that Gugliuzza could be
held individually liable for those violations. See Commerce
Planet, Inc., 878 F. Supp. 2d at 1055.1 In addition to
enjoining Gugliuzza from further violations of the FTC Act,
1
We affirmed this liability determination on appeal. See FTC v.
Commerce Planet, Inc., 642 F. App’x 680, 683 (9th Cir. 2016).
IN RE GUGLIUZZA 5
the district court awarded the FTC $18.2 million in
restitution.2 Id. at 1092.
In the wake of this restitution award, Gugliuzza filed a
voluntary petition for bankruptcy under Chapter 7 in
November 2012. “Generally, a debtor is permitted to
discharge all debts that arose before the filing of his
bankruptcy petition,” Hawkins v. Franchise Tax Bd., 769 F.3d
662, 666 (9th Cir. 2014) (citing 11 U.S.C. § 727(b)), but “the
Bankruptcy Code provides for certain exceptions to that
general rule,” id. (citing 11 U.S.C. § 523). One such
exception is that debts obtained by “false pretenses, a false
representation, or actual fraud” are not dischargeable.
11 U.S.C. § 523(a)(2)(A).3 To establish nondischargeability
2
We affirmed the district court’s authority to enter the restitution
order, but vacated the order and remanded because the district court did
not “actually hold [Gugliuzza] jointly and severally liable for Commerce
Planet’s restitution obligations.” FTC v. Commerce Planet, Inc., 815 F.3d
593, 603 (9th Cir. 2016). On remand, the district court modified its order
and held Gugliuzza jointly and severally liable for the restitution
obligations.
3
11 U.S.C. § 523(a)(2)(A) provides, in pertinent part:
(a) A discharge under section 727, 1141, 1228(a),
1228(b), or 1328(b) of this title does not discharge an
individual debtor from any debt—
(2) for money, property, services, or an extension,
renewal, or refinancing of credit, to the extent
obtained by—
(A) false pretenses, a false representation, or
actual fraud, other than a statement respecting
the debtor’s or an insider’s financial
condition[.]
6 IN RE GUGLIUZZA
under § 523(a)(2)(A), a creditor must prove five elements:
“(1) misrepresentation, fraudulent omission or deceptive
conduct by the debtor; (2) knowledge of the falsity or
deceptiveness of his statement or conduct; (3) an intent to
deceive; (4) justifiable reliance by the creditor on the debtor’s
statement or conduct; and (5) damage to the creditor
proximately caused by its reliance on the debtor’s statement
or conduct.” Turtle Rock Meadows Homeowners Ass’n v.
Slyman (In re Slyman), 234 F.3d 1081, 1085 (9th Cir. 2000).
In bankruptcy court, the FTC commenced an adversary
proceeding, which is “essentially [a] full civil lawsuit[]
carried out under the umbrella of the bankruptcy case,”
Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1694 (2015),
seeking a determination that Gugliuzza’s restitution debt was
nondischargeable under 11 U.S.C. § 523(a)(2)(A). The FTC
moved for summary judgment, contending that Commerce
Planet’s determination that Gugliuzza had engaged in
deceptive practices for purposes of the FTC Act foreclosed
him from relitigating the five elements necessary to establish
that the debt was obtained by “false pretenses, a false
representation, or actual fraud” such that it was not
dischargeable under § 523(a)(2)(A). See Sasson v. Sokoloff
(In re Sasson), 424 F.3d 864, 872 (9th Cir. 2005)
(“[C]ollateral estoppel principles . . . apply in discharge
exception proceedings pursuant to § 523(a).” (quoting
Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991))). The
bankruptcy court granted the FTC’s motion and entered
judgment in the FTC’s favor.
IN RE GUGLIUZZA 7
On appeal, the district court affirmed the bankruptcy court
in part, reversed in part, and remanded. See FTC v.
Gugliuzza (In re Gugliuzza), 527 B.R. 370, 373 (C.D. Cal.
2015). It held that the bankruptcy court correctly concluded
that Gugliuzza was collaterally estopped from relitigating
four of the five elements necessary to prove
nondischargeability under § 523(a)(2)(A) (specifically, the
elements of misrepresentation, knowledge, justifiable
reliance, and damages), but had erred in holding that
Gugliuzza was collaterally estopped from relitigating the
issue of his intent to deceive consumers. Accordingly, the
district court remanded the case to the bankruptcy court for
further fact-finding on the issue of Gugliuzza’s intent to
deceive. Gugliuzza timely appealed this order. He contends
on appeal that the district court and bankruptcy court erred in
holding that collateral estoppel precluded him from litigating
the elements of misrepresentation, justifiable reliance, and
damages.
II
We must first consider whether we have jurisdiction to
entertain Gugliuzza’s appeal. See Sahagun v. Landmark
Fence Co. (In re Landmark Fence Co.), 801 F.3d 1099, 1102
(9th Cir. 2015). We have jurisdiction to determine our
jurisdiction, Bunyan v. United States (In re Bunyan), 354 F.3d
1149, 1152 (9th Cir. 2004), and consider the question de
novo, Silver Sage Partners, Ltd. v. City of Desert Hot Springs
(In re City of Desert Hot Springs), 339 F.3d 782, 787 (9th
Cir. 2003).
8 IN RE GUGLIUZZA
A
We have authority to hear appeals in bankruptcy cases
under three different jurisdiction-conferring provisions,
28 U.S.C. §§ 1291, 1292, and 158(d)(1).
First, 28 U.S.C. § 1291 provides: “[t]he courts of appeals
(other than the United States Court of Appeals for the Federal
Circuit) shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . . ,
except where a direct review may be had in the Supreme
Court.” 28 U.S.C. § 1291. This section gives us “jurisdiction
over appeals from ‘final decisions by the district courts’
acting in any capacity.” Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253 (1992).
In the bankruptcy context, we have jurisdiction under
§ 1291 over appeals from rulings made by a district court
when it presides directly over a bankruptcy case. See, e.g.,
Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372
(9th Cir. 1986). We also have jurisdiction under § 1291 over
appeals taken from “final decisions” made by a district court
when it sits in a bankruptcy-appellate capacity. See Germain,
503 U.S. at 253. While district courts normally do not act as
appellate bodies, they may do so in the bankruptcy context.
Congress gave district courts original jurisdiction over
bankruptcy proceedings, see 28 U.S.C. § 1334, but also
authorized them to refer bankruptcy cases to bankruptcy
judges in the first instance, see id. § 157. In fact, all districts
have adopted “a general order of reference to send all
bankruptcy cases to the bankruptcy judges for the district.”
Schulman v. Cal. State Water Res. Control Bd. (In re Lazar),
200 B.R. 358, 366 (Bankr. C.D. Cal. 1996). After making
such a reference, district courts may hear appeals “from final
IN RE GUGLIUZZA 9
judgments, orders, and decrees . . . of bankruptcy judges
entered in cases and proceedings.”4 28 U.S.C. § 158(a).
Section 158(a) also gives district courts, sitting in an
4
28 U.S.C. § 158(a) provides, in full:
The district courts of the United States shall have
jurisdiction to hear appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued
under section 1121(d) of title 11 increasing or
reducing the time periods referred to in section
1121 of such title; and
(3) with leave of the court, from other interlocutory
orders and decrees;
and, with leave of the court, from interlocutory orders
and decrees, of bankruptcy judges entered in cases and
proceedings referred to the bankruptcy judges under
section 157 of this title. An appeal under this subsection
shall be taken only to the district court for the judicial
district in which the bankruptcy judge is serving.
(Emphasis added.)
The repetition of the phrase “with leave of the court, from . . .
interlocutory orders and decrees” appears to be an error introduced by the
Bankruptcy Reform Act of 1994. As originally enacted in 1984, § 158(a)
gave district courts jurisdiction to “hear appeals from final judgments,
orders, and decrees, and, with leave of the court, from interlocutory orders
and decrees . . . .” See Bankruptcy Amendments and Federal Judgeship
Act of 1984, Pub. L. No. 98-353, § 104(a), 98 Stat. 333, 341. In the 1994
Act, Congress amended this provision to add the language of what is now
§ 158(a)(1)–(3), which includes the phrase: “with leave of the court, from
other interlocutory orders and decrees,” see Bankruptcy Reform Act of
1994, Pub. L. No. 103-394, § 102, 108 Stat. 4106, 4108. This redundancy
does not affect the subsection’s meaning.
10 IN RE GUGLIUZZA
appellate capacity, jurisdiction over “interlocutory orders and
decrees.”5
The scope of our jurisdiction under § 1291 is the same for
all district court rulings. See Klestadt & Winters, LLP v.
Cangelosi, 672 F.3d 809, 815 (9th Cir. 2012). Regardless of
context, in determining whether the district court decision is
final under § 1291, “we ask whether the decision presented
for review ‘ends the litigation on the merits and leaves
nothing for the district court to do but execute the
judgment.’” Congrejo Invs., LLC v. Mann (In re Bender),
586 F.3d 1159, 1163 (9th Cir. 2009) (quoting Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981)).
A second source of jurisdiction is provided by § 1292,
which authorizes appellate courts to hear appeals taken from
all interlocutory orders of specified types, 28 U.S.C.
§ 1292(a), as well as appeals of interlocutory orders that are
certified by the district court to meet specified criteria, id.
§ 1292(b). This jurisdiction includes the authority to hear
appeals from a district court’s interlocutory orders issued in
a bankruptcy-appellate capacity. See Germain, 503 U.S. at
254 (“So long as a party to a proceeding or case in
bankruptcy meets the conditions imposed by § 1292, a court
of appeals may rely on that statute as a basis for
jurisdiction.”).
5
Generally, an interlocutory order or decree may be appealed only
“with leave of the court.” 28 U.S.C. § 158(a)(3). However, an appeal
may be taken as of right from an interlocutory order and decree issued
under 11 U.S.C. § 1121(d), which provides for modification of the
exclusivity period in which only the debtor may propose a reorganization
plan. 28 U.S.C. § 158(a)(2); see Bank of Am. Nat’l Trust & Sav. Ass’n v.
203 N. LaSalle St. P’ship, 526 U.S. 434, 438–39 (1999).
IN RE GUGLIUZZA 11
In contrast to the grants of general jurisdiction under 28
U.S.C. § 1291 and § 1292, 28 U.S.C. § 158(d) gives us
jurisdiction specific to bankruptcy decisions of district courts
and decisions of three-judge bankruptcy appellate panels (or
BAPs).6 Under § 158(d)(1), “[t]he courts of appeals shall
have jurisdiction of appeals from all final decisions,
judgments, orders, and decrees entered under subsections (a)
[defining the district courts’ jurisdiction] and (b) [defining the
jurisdiction of the bankruptcy appellate panels] of this
section.”7 This language limits our appellate jurisdiction
under § 158(d)(1) to decisions, judgments, orders, and
decrees that are “final”; we have no authority under section
158(d)(1) to consider interlocutory orders and decrees. See
Germain, 503 U.S. at 252 (holding that Ҥ 158 did not confer
jurisdiction on the Court of Appeals” over an interlocutory
order entered by a district court, as neither § 158(d)(1) “nor
any other part of § 158 mentions interlocutory orders entered
by the district courts in bankruptcy”). 8
6
Additionally, § 158(d) gives us jurisdiction to hear direct appeals
from a “judgment, order, or decree” of a bankruptcy court, bypassing the
district court or the BAP, if we receive the appropriate certification from
the court involved or all of the parties. See 28 U.S.C. § 158(d)(2).
7
Section 158(b) (which provides for the establishment of a
bankruptcy appellate panel) grants the BAP jurisdiction to hear appeals
over “final judgments, orders, and decrees” as well as over “interlocutory
orders and decrees” to the same extent as district courts sitting as appellate
bodies in bankruptcy. See 28 U.S.C. § 158(b)(1). Accordingly, our
jurisdiction under § 158(d) is the same whether the decision was entered
by the BAP or, as here, by a district court.
8
As noted in Germain, the jurisdiction provided to the federal circuit
courts under § 1291 from final decisions of the district courts acting in any
capacity overlaps with the jurisdiction conferred by § 158(d). This
overlap notwithstanding, Germain held that interpreting § 1291 as
12 IN RE GUGLIUZZA
B
The Supreme Court has recently provided guidance on
how to interpret the scope of jurisdiction granted by § 158.
See Bullard, 135 S. Ct. 1686. In Bullard, a bankruptcy court
declined to confirm a debtor’s proposed plan of
reorganization in a Chapter 13 case. Id. at 1691. The debtor
appealed the denial to the First Circuit’s BAP, which
“concluded that the order denying plan confirmation was not
final because [the debtor] was ‘free to propose an alternate
plan.’” Id. (quoting Bullard v. Hyde Park Sav. Bank (In re
Bullard), 494 B.R. 92, 95 (1st Cir. BAP 2013)). The BAP
therefore held that it did not have jurisdiction under
§ 158(a)(1), which grants jurisdiction over only “final
judgments, orders, and decrees” of bankruptcy judges entered
in cases and proceedings. Nonetheless, the BAP granted the
debtor leave to appeal an interlocutory order under 28 U.S.C.
§ 158(a)(3) and affirmed the bankruptcy court. Id.
The debtor then appealed to the First Circuit, which
dismissed the appeal for lack of jurisdiction. Id. The First
Circuit reasoned that the denial of a plan confirmation was
not a final order, so it lacked jurisdiction under § 158(d)(1),
and the BAP had not certified the interlocutory order for
review, so it also lacked jurisdiction under § 158(d)(2). Id.
On appeal to the Supreme Court, the debtor contended
that the First Circuit had jurisdiction under § 158(d) because
orders denying confirmation should be considered final
conferring the same jurisdiction as § 158(d) over final decisions of district
courts sitting as appellate bodies did not make § 1291 superfluous,
because § 158(d) “also confers jurisdiction over final decisions of the
appellate panels in bankruptcy acting under § 158(b).” 503 U.S. at 253.
IN RE GUGLIUZZA 13
orders. The Supreme Court rejected this argument.
According to the Court, the bankruptcy court’s order denying
plan confirmation was not a final order entered in a
proceeding. Therefore, the First Circuit lacked jurisdiction to
consider it. Bullard explained that in “ordinary civil
litigation, a case in federal district court culminates in a ‘final
decisio[n],’ a ruling ‘by which a district court disassociates
itself from a case.’” Id. (alteration in original) (quoting
28 U.S.C. § 1291; Swint v. Chambers Cty. Comm’n, 514 U.S.
35, 42 (1995)). As a general rule, a party can appeal as of
right only from the final decision that ends the case. Id.
“This rule reflects the conclusion that ‘[p]ermitting
piecemeal, prejudgment appeals . . . undermines efficient
judicial administration and encroaches upon the prerogatives
of district court judges, who play a special role in managing
ongoing litigation.’” Id. at 1691–92 (alterations in original)
(quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
106, (2009)).
The Court acknowledged that the “rules are different in
bankruptcy,” but clarified that this difference arises because
“[a] bankruptcy case involves ‘an aggregation of individual
controversies,’ many of which would exist as stand-alone
lawsuits but for the bankrupt status of the debtor.” Id. at 1692
(quoting 1 Alan N. Resnick & Henry J. Sommer, Collier on
Bankruptcy ¶ 5.08[1][b], at 5-42 (16th ed. 2014)). That is,
because bankruptcy cases generally involve multiple parties
asserting a range of different claims, many of which are
litigated in discrete proceedings (including adversary
actions), “Congress has long provided that orders in
bankruptcy cases may be immediately appealed if they finally
dispose of discrete disputes within the larger case.” Id.
(quoting Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co.,
547 U.S. 651, 657 n.3 (2006)).
14 IN RE GUGLIUZZA
Bullard then provided guidance on how to discern
whether a particular order was “immediately appealable”
under § 158 by virtue of being final within a proceeding. Id.
According to the Court, the relevant proceeding is one that
results in a final order that “alters the status quo and fixes the
rights and obligations of the parties.” Id. Plan confirmation
satisfies this definition: “[w]hen the bankruptcy court
confirms a plan, its terms become binding on debtor and
creditor alike” with preclusive effect, often resulting in the
vesting of property in the debtor and the distribution of funds
to creditors. Id. at 1692; see id. at 1695 (holding that a plan
confirmation order is appealable because it “alters the legal
relationships among the parties”). Denial of confirmation
followed by dismissal of the case also satisfies this definition,
as “the consequences are similarly significant”: it “dooms the
possibility of a discharge” and lifts the automatic stay. Id. at
1692–93. By contrast, “[a]n order denying confirmation is
not final, so long as it leaves the debtor free to propose
another plan.” Id. at 1692. Unlike the dramatic
consequences flowing from either confirmation or dismissal,
denial with leave to amend “changes little,” as “[t]he
automatic stay persists” and “[t]he possibility of discharge
lives on.” Id. at 1693.
The Supreme Court then addressed the debtor’s argument
that a distinct proceeding was conducted “[e]ach time the
bankruptcy court reviews a proposed plan” such that the
bankruptcy court’s order denying confirmation was therefore
a final order within a proceeding for purposes of § 158(a),
regardless whether the plan was confirmed or rejected. Id. at
1692. Rejecting this argument, Bullard reasoned that such an
approach “[did] not make much sense” because it defined
“the pertinent proceeding so narrowly that the requirement of
finality would do little work as a meaningful constraint on the
IN RE GUGLIUZZA 15
availability of appellate review.” Id. at 1693. By vastly
expanding the class of immediately appealable orders, the
debtor’s proposal gave rise to an unacceptable risk of
piecemeal appeals, given that “debtors may often view . . . the
prospect of appeals as important leverage in dealing with
creditors.” Id. Judicial efficiency would also suffer under the
debtor’s proposal. Given that “each climb up the appellate
ladder and slide down the chute can take more than a year,”
expanding the class of appealable orders would create
precisely the “delays and inefficiencies” that finality rules
sought to prevent in the first instance. Id.
For the same reason, the Court rejected the government’s
argument that “an order resolving any contested matter is
final and immediately appealable.” Id. at 1694 (emphasis
omitted). Bullard explained that “the list of contested matters
is ‘endless’ and covers all sorts of minor disagreements.” Id.
(quoting 10 Resnick & Sommer, Collier on Bankruptcy
¶ 9014.01, at 9014-3). “The concept of finality cannot stretch
to cover, for example, an order resolving a disputed request
for an extension of time.” Id. The asymmetry produced by
the Court’s analysis (plan confirmation is appealable as a
final order while plan denial is not) was of little import. As
Bullard explained, “it is of course quite common for the
finality of a decision to depend on which way the decision
goes.” Id. at 1694. For instance, “[a]n order granting a
motion for summary judgment is final; an order denying such
a motion is not.” Id.
The Court acknowledged that sometimes “a question will
be important enough that it should be addressed
immediately.” Id. at 1695. Indeed, the Court noted that the
issue in Bullard “could well fit the bill” because it “presented
a pure question of law that had divided bankruptcy courts in
16 IN RE GUGLIUZZA
the First Circuit and would make a substantial financial
difference to the parties.” Id. But neither the significance of
the issue nor its purely legal nature warranted a more flexible
finality standard; the availability of interlocutory review, such
as that provided under § 158(d)(2) and § 1292, was sufficient
to address this concern. Id.
In sum, Bullard concluded that an order ending a
proceeding in a bankruptcy case is immediately appealable if
the order “alters the status quo and fixes the rights and
obligations of the parties,” id. at 1692, or “alters the legal
relationships among the parties,” id. at 1695. This
interpretation of finality in bankruptcy cases determines the
scope of the district court and BAP’s authority to hear appeals
“from final judgments, orders, and decrees” under § 158(a)(1)
as well as our authority to hear “appeals from all final
decisions, judgments, orders, and decrees” of bankruptcy
judges entered by the district court and BAP under
§ 158(d)(1), which are governed by the same constraints. See
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007) (“[I]dentical words and phrases within the same
statute should normally be given the same meaning . . . .”);
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)
(“[O]perative words have a consistent meaning throughout
. . . .”).
C
Our approach to determining jurisdiction under § 158(d)
is generally consistent with Bullard, as we have explained in
our post-Bullard decisions. See Eden Place, LLC v. Perl (In
re Perl), 811 F.3d 1120 (9th Cir. 2016); In re Landmark
Fence, 801 F.3d 1099. Just as Bullard held that “[t]he rules
are different in bankruptcy” because a bankruptcy case
IN RE GUGLIUZZA 17
involves “an aggregation of individual controversies,” 135 S.
Ct. at 1692, we have long recognized that certain bankruptcy
orders are appealable even if they do not conclude the entire
bankruptcy case, and thus are “technically interlocutory,” In
re Perl, 811 F.3d at 1125 n.3 (quoting Alexander v. Compton
(In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)); see also
Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr.,
Ltd.), 754 F.2d 1416, 1418 (9th Cir. 1985) (citing “an order
entirely terminating an adversary proceeding” as an example
of an immediately appealable order).9 Consistent with
Bullard’s ruling that § 158 provides jurisdiction over orders
in bankruptcy cases that alter “the legal relationships among
the parties,” 135 S. Ct. at 1695, we have looked “to whether
the bankruptcy court’s decision: ‘1) resolves and seriously
affects substantive rights and 2) finally determines the
discrete issue to which it is addressed’” in determining
whether a particular bankruptcy court order is final, In re
Perl, 811 F.3d at 1126 (quoting SS Farms, LLC v. Sharp (In
re SK Foods, L.P.), 676 F.3d 798, 802 (9th Cir. 2012)).
When the district court (or BAP) affirms or reverses such a
decision, we have considered it to be final and immediately
appealable. Id.
By contrast, when an appeal is taken from a district court
or BAP ruling that remands the case for further proceedings
in the bankruptcy court, we have applied a four-factor test,
considering “(1) the need to avoid piecemeal litigation;
(2) judicial efficiency; (3) the systemic interest in preserving
9
In re Four Seas Center considered the scope of our jurisdiction
under a predecessor to § 158, 28 U.S.C. § 1293. See 754 F.3d at 1418.
However, “we have held that decisions regarding finality under § 1293 are
applicable to cases arising under § 158,” Klestadt & Winters, 672 F.3d at
814 n.4.
18 IN RE GUGLIUZZA
the bankruptcy court’s role as the finder of fact; and
(4) whether delaying review would cause either party
irreparable harm.” Id. at 1126 (quoting In re Landmark
Fence, 801 F.3d at 1102). As in Bullard, these factors direct
us to avoid piecemeal appeals and multiple “climb[s] up the
appellate ladder and slide[s] down the chute” and the “delays
and inefficiencies” that result. 135 S. Ct. at 1693. Applying
this four-factor standard, we have held that “a district court
order that includes a remand to the bankruptcy court with
explicit instructions to engage in ‘further fact-finding’” is not
immediately appealable. In re Landmark Fence, 801 F.3d at
1101.
In Landmark Fence, our leading post-Bullard decision, a
district court held that a bankruptcy court had applied an
incorrect legal standard for assessing an element of damages
and remanded for “additional fact finding.” Id. at 1102. On
appeal, we concluded that we lacked jurisdiction over the
district court’s order. Id. at 1101. Most important, we held
that the first factor, “the risk of piecemeal litigation” weighed
heavily in favor of the conclusion that the district court’s
order was not final: “When an intermediate appellate court
remands a case to the bankruptcy court, the appellate process
likely will be much shorter if we decline jurisdiction and
await ultimate review of all the combined issues.” Id. at 1103
(quoting Stanley v. Crossland, Crossland, Chambers,
MacArthur & Lastreto (In re Lakeshore Vill. Resort, Ltd.),
81 F.3d 103, 106 (9th Cir. 1996)). With respect to the second
factor, we rejected the appellants’ argument that judicial
efficiency would be enhanced by asserting jurisdiction
because our review of the merits had the potential to end the
litigation. Id. Rather, we held that we should “eschew a
‘jurisdictional inquiry that requires us to decide the merits of
the appeal.’” Id. (quoting Vylene Enters., Inc. v. Naugles,
IN RE GUGLIUZZA 19
Inc. (In re Vylene Enters.), 968 F.2d 887, 891 (9th Cir.
1992)). Landmark Fence’s articulation of this test is
consistent with a long line of cases holding that when a
district court “remands for factual determinations on a central
issue, its order is not final and we lack jurisdiction to review
the order.” In re Vylene Enters., 968 F.2d at 895
(determining that a district court’s remand to the bankruptcy
court for factual determinations on a central issue was not
final after considering the four factors applied in Landmark
Fence); see also U.S. Bank N.A. v. Vill. at Lakeridge, LLC (In
re Vill. at Lakeridge, LLC), 814 F.3d 993, 998 n.7 (9th Cir.
2016) (“[T]he BAP’s decision as issued was not final,
because . . . it also remanded for discovery to allow factual
determinations [on a central issue].”); King v. Stanton (In re
Stanton), 766 F.2d 1283, 1287 (9th Cir. 1985) (noting that
“when the BAP remands for further factual findings related
to a central issue raised on appeal, that order is not final, and
we lack jurisdiction”); Dental Capital Leasing Corp. v.
Martinez (In re Martinez), 721 F.2d 262, 265 (9th Cir. 1983)
(holding that because the § 1291 finality standards apply “to
remands for factual determinations in the bankruptcy
context,” and only “final decisions” of BAPs can be appealed
to the appellate court, we lack jurisdiction over “a remand to
the bankruptcy court for clarification of a central issue of the
case”).
We have departed from this general rule in situations
“where the district court’s remand order is limited to ‘purely
mechanical or computational task[s] such that the
proceedings on remand are highly unlikely to generate a new
appeal.’” In re Landmark Fence, 801 F.3d at 1103 (alteration
in original) (quoting Saxman v. Educ. Credit Mgmt. Corp. (In
re Saxman), 325 F.3d 1168, 1172 (9th Cir. 2003)); see also
Farm Credit Bank of Spokane v. Fowler (In re Fowler),
20 IN RE GUGLIUZZA
903 F.2d 694, 695–96 (9th Cir. 1990) (holding that where the
district court remanded to the bankruptcy court only for the
ministerial function of applying the correct interest rate, the
district court order was sufficiently final to be immediately
appealable.).
D
Gugliuzza argues that in evaluating whether the district
court’s order qualifies as a final order, we are not bound by
Bullard and Landmark Fence, but should apply a different
line of cases beginning with Bonner Mall Partnership v. U.S.
Bancorp Mortgage Co. (In re Bonner Mall Partnership),
2 F.3d 899 (9th Cir. 1993). In Bonner Mall, a creditor moved
for relief from the automatic stay in order to foreclose on
secured property owned by the debtor, who had filed a
proposed reorganization plan. Id. at 902. The debtor argued
that relief from the automatic stay was not warranted, as its
reorganization plan was confirmable based on the theory that
the owners of the company could retain some of their equity
in the company under an exception (called the “new value
exception”) to a bankruptcy rule that would have otherwise
prohibited such treatment of equity holders. Id. The creditor
argued that the new value exception had not survived the
enactment of the Bankruptcy Code in 1978, and that even if
the exception had survived, the plan was unconfirmable. Id.
Agreeing with the creditor, the bankruptcy court held that the
enactment of the Bankruptcy Code had eliminated the new
value exception and accordingly granted the creditor’s motion
for relief. Id. The district court reversed, holding that the
new value exception remained in force, and therefore
remanded to the bankruptcy court for further proceedings as
to the confirmability of the debtor’s plan. Id. at 902–03.
 IN RE GUGLIUZZA 21
Straying from our long line of cases holding that an order
remanding “for factual determinations on a central issue” is
not final, see In re Vylene Enters., 968 F.2d at 895, we
announced the new rule that we have jurisdiction “even
though a district court has remanded a matter for factual
findings on a central issue if that issue is legal in nature and
its resolution either 1) could dispose of the case or proceeding
and obviate the need for fact finding; or 2) would materially
aid the bankruptcy court in reaching its disposition on
remand.” In re Bonner Mall, 2 F.3d at 904 (citing In re
Stanton, 766 F.2d at 1288 n.8). Applying this rule to the case
at hand, we determined that “[t]he central question is a legal
one that is clearly potentially dispositive.” Id. Accordingly,
we held that the first prong of our new test applied and
asserted jurisdiction over the appeal. Id. at 904–05.
We subsequently asserted jurisdiction over interlocutory
remand orders under the second prong of the Bonner Mall
test: whether the remand would “materially aid” the
bankruptcy court in considering a factual issue. In Dawson
v. Washington Mutual Bank, F.A. (In re Dawson), for
instance, two debtors filed an adversary action against a
creditor claiming that the creditor had violated the automatic
stay by foreclosing on property owned by the debtors’
relatives. 390 F.3d 1139, 1144 (9th Cir. 2004). The debtors
claimed they had an interest in the property pursuant to a
written agreement with those relatives, and sought emotional
distress damages caused by the foreclosure. Id. The
bankruptcy court held (among other things) that the
agreement did not give the debtors any interest in the property
and therefore the creditor did not violate the automatic stay.
Id. The district court affirmed part of the bankruptcy court’s
order, but reversed on one issue: it held that the agreement
might have given the debtors an interest in the property, and
22 IN RE GUGLIUZZA
remanded to the bankruptcy court for factual findings
necessary to make that determination, including whether the
conditions precedent in the property agreement had been
fulfilled. Id. at 1144–45.
In considering whether we had jurisdiction to hear an
appeal from the district court’s order, we acknowledged that
the “district court reversed the bankruptcy [court] on a central
issue in the case . . . and remanded the case for further factual
findings.” Id. at 1145. Nevertheless, we noted that the case
raised a legal question: “When, if ever, are damages for
emotional distress recoverable under 11 U.S.C. § 362(h) for
a violation of the automatic stay?” Id. While recognizing
that “[o]ur answer will not obviate the need for all further
fact-finding,” we concluded that our resolution of this
question would “materially aid the bankruptcy court in
reaching its disposition on remand” (the second prong of the
Bonner Mall test), and therefore asserted jurisdiction. Id. at
1145–46; see also Meyer v. U.S. Trustee (In re Scholz),
699 F.3d 1167, 1170–71 (9th Cir. 2012) (citing In re Dawson,
390 F.3d at 1145–46).
We went even further in Price v. Lehtinen (In re
Lehtinen), in which we indicated that we may assert
jurisdiction over an appeal of an interlocutory BAP order
whenever “the appeal concerns primarily a question of law.”
564 F.3d 1052, 1057 (9th Cir. 2009) (quoting DeMarah v.
United States (In re DeMarah), 62 F.3d 1248, 1250 (9th Cir.
1995)). In Lehtinen, a bankruptcy court imposed sanctions on
the debtor’s counsel, including disgorgement of attorneys’
fees and suspension from practicing before the bankruptcy
court for three months. Id. The BAP held that the
bankruptcy court had not abused its discretion in deciding to
impose sanctions, but the sanction order did not clearly
IN RE GUGLIUZZA 23
reflect that the court had considered the relevant factors. Id.
Therefore, the BAP vacated the suspension “and remanded to
the bankruptcy court for consideration of the American Bar
Association Standards.” Id. On appeal, we acknowledged
that “there is some question as to the finality of the BAP’s
decision,” but nevertheless summarily concluded that
“[b]ecause this is a purely legal question, we have
jurisdiction.” Id.
In sum, under Bonner Mall and its progeny, we have
determined that “final decisions, judgments, orders, and
decrees” for purposes of our jurisdiction under § 158(d)
include district court or BAP decisions remanding a central
issue to the bankruptcy court for further fact-finding so long
as the appeal raises a “purely legal question” or our decision
on appeal could “materially aid” the bankruptcy court in its
decisionmaking process.
E
Bullard and Landmark Fence clearly limit the
applicability of the Bonner Mall line of cases. Bullard
provides that orders that are technically interlocutory are
“final” for purposes of § 158 only when they “finally dispose
of [a] discrete dispute[] within the larger case,” 135 S. Ct. at
1692 (quoting Howard Delivery Serv., 547 U.S. at 657 n.3).
A decision that remands a case for further fact-finding will
rarely have this degree of finality, unless the remand order is
limited to ministerial tasks, see, e.g., In re Fowler, 903 F.2d
at 695–96. Further, Bullard expressly rejected the argument
that a decision should be deemed final because it “presented
a pure question of law” that was important to the parties,
reasoning that “there are several mechanisms for
interlocutory review to address such cases.” 135 S. Ct. at
24 IN RE GUGLIUZZA
1695; see also In re Landmark Fence, 801 F.3d at 1103
(rejecting the contention that “the issues in the appeal [are]
purely matters of law” based on “the language of the order on
appeal,” which included “explicit directions for the
bankruptcy court to engage in ‘further fact-finding’”).
Finally, although the Supreme Court gave weight to
considerations regarding the efficiency of the judicial
process, it chose not to adopt a case-by-case approach to this
issue. Rather than evaluate whether the appeal of a specific
ruling would be efficient in a particular case, the Court
adopted the general principle that only decisions that alter the
status quo or fix the parties’ rights and obligations could be
appealed.10 Bullard, 135 S. Ct. at 1692. The Court focused
on ensuring “a meaningful constraint on the availability of
appellate review” as opposed to expanding the universe of
appealable interlocutory orders. Id. at 1693. To the extent
Bonner Mall suggests we may peek at the merits in order to
determine whether we have jurisdiction (i.e., because we have
determined that our resolution of the legal issue would
dispose of the case without a need for further fact-finding, or
would correct an error by the district court and thus assist the
bankruptcy court on remand), it is inconsistent with Bullard
and our post-Bullard precedent. As Landmark Fence put it,
we must “eschew a ‘jurisdictional inquiry that requires us to
decide the merits of the appeal.’” 801 F.3d at 1103 (quoting
In re Vylene Enters., 968 F.2d at 891). Regardless whether it
10
Indeed, Bullard could have considered the judicial efficiencies
gained had the appellate court taken jurisdiction of the debtor’s appeal and
ruled that the debtor’s plan should have been confirmed. Such a favorable
ruling would have concluded the proceedings, and the debtor could have
avoided additional efforts to revise his plan. Instead, Bullard noted that
if the appellate court affirmed the denial of the plan, then the debtor could
appeal each subsequent plan that was denied. 135 S. Ct. at 1693.
IN RE GUGLIUZZA 25
would be judicially efficient to consider a reversal of a
summary judgment order, “[a]n order granting a motion for
summary judgment is final; an order denying such a motion
is not.” Bullard, 135 S. Ct. at 1694. Bullard made clear that
our analysis of whether an order is “final” is different in
bankruptcy only to the extent a “final” order under § 158 may
terminate a discrete proceeding in bankruptcy, rather than the
entire bankruptcy case. See 135 S. Ct. at 1692.
Accordingly, to the extent Bonner Mall holds that we
have jurisdiction over an interlocutory order in a bankruptcy
case because ruling on a legal issue could “dispose of the
case” or “aid the bankruptcy court in reaching its
disposition,” In re Bonner Mall, 2 F.3d at 904, or merely
because the appeal involves “a purely legal question,” In re
Lehtinen, 564 F.3d at 1057, it is inconsistent with Bullard and
therefore no longer binding. See Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc) (where a “prior decision
may have been undercut by higher authority to such an extent
that it has been effectively overruled by such higher
authority,” it “is no longer binding on district judges and
three-judge panels of this court”); see also In re Vylene
Enters., 968 F.2d at 895 (when a district court “remands for
factual determinations on a central issue, its order is not final
and we lack jurisdiction to review the order.”). Gugliuzza’s
reliance on Bonner Mall and its progeny is therefore
unavailing.
III
We now apply these principles to this case, and consider
whether we have jurisdiction over the district court’s order
reversing in part and remanding to the bankruptcy court to
determine whether Gugliuzza had an intent to deceive.
26 IN RE GUGLIUZZA
We have no difficulty concluding that we lack jurisdiction
under §§ 1291 and 1292. We do not have jurisdiction under
§ 1291 because the district court’s order did not “end[] the
litigation on the merits and leave[] nothing for the district
court to do but execute the judgment.’” In re Bender,
586 F.3d at 1163 (quoting Firestone Tire, 449 U.S. at 373).
We also lack jurisdiction under § 1292 because the district
court did not certify its decision for interlocutory review.
We next turn to the question whether we have jurisdiction
under § 158(d)(1). The district court’s decision did not end
the bankruptcy case as a whole, but as noted in Bullard, a
“technically interlocutory” ruling can be deemed to be a final
order in a bankruptcy case. See In re Perl, 811 F.3d at 1125
n.3. But here, the district court’s ruling did not end the
discrete proceeding before it, namely the FTC’s adversary
action. The main issue raised in the FTC’s adversary action
is whether Gugliuzza’s restitution debt to the FTC can be
discharged in Gugliuzza’s bankruptcy, or whether that debt
is nondischargeable under 11 U.S.C. § 523(a)(2)(A). Rather
than resolving this issue, the district court remanded the case
to the bankruptcy court for fact-finding on a central issue. As
a result, the district court’s decision did not “alter[] the status
quo” or “fix[] the rights and obligations of the parties.”
Bullard, 135 S. Ct. at 1692. Like the denial of the plan
confirmation in Bullard, the district court’s ruling “changes
little.” Id. at 1693. Because the possibility that Gugliuzza’s
restitution judgment may be discharged in bankruptcy lives
on, we must conclude, as indicated in Bullard, that “‘[f]inal’
does not describe this state of affairs.” Id. As the Supreme
Court memorably put it, “It ain’t over till it’s over,” and the
nondischargeability dispute here simply “ain’t over.” Id.
IN RE GUGLIUZZA 27
Landmark Fence likewise requires this conclusion. As in
that case, “the risk of piecemeal litigation is significant” here.
801 F.3d at 1103. Our intrusion into this matter would
fragment the adversary proceeding between the FTC and
Gugliuzza “carried out under the umbrella of the bankruptcy
case.” Bullard, 135 S. Ct. at 1694. The other factors
considered in Landmark Fence likewise weigh against our
jurisdiction. Efficiency is best served by our review of the
district court’s resolution of the dispute between the parties
as a whole (i.e., in this case, whether Gugliuzza’s restitution
debt is dischargeable in bankruptcy under § 523(a)(2)(A)),
not our review of the individual elements of a dispute. Any
efficiency gained by the potential for clarification of the
scope of the bankruptcy court’s fact-finding mission on
remand is outweighed by the near certainty of piecemeal
appeals that result, especially given that this argument could
be made with respect to interim review of an “endless” list of
matters. Id. Further, the bankruptcy court’s fact-finding role
is best preserved by allowing the remand to run its course,
particularly since the bankruptcy court’s fact-finding on the
issue of intent may result in the conclusion that the restitution
debt is nondischargeable. See In re Stanton, 766 F.2d at 1287
(“[I]f the BAP [or district court] remands for factual
development and we take jurisdiction before that process is
concluded, we interfere with the bankruptcy court’s fact-
finding role.”). As Bullard held, it is not sensible to stretch
the concept of finality so far that “the requirement of finality
would do little work as a meaningful constraint on the
availability of appellate review.” 135 S. Ct. at 1693.
The bankruptcy court’s task on remand here, to determine
whether Gugliuzza had the requisite intent to deceive, is not
a mere “mechanical or computational task[] such that the
proceedings on remand are highly unlikely to generate a new
28 IN RE GUGLIUZZA
appeal.” In re Landmark Fence, 801 F.3d at 1103 (quoting In
re Saxman, 325 F.3d at 1172). Therefore, this case does not
fall into the ministerial exception to our rule that, when “an
intermediate appellate court remands a case to the bankruptcy
court,” we should “decline jurisdiction and await ultimate
review of all the combined issues.” Id. (quoting In re
Lakeshore Vill. Resort, 81 F.3d at 106).
Moreover, it is doubtful that an interlocutory district court
order can cause irreparable harm in light of the “parties’
rights and obligations remain[ing] unsettled,” Bullard, 135 S.
Ct. at 1693, and the availability of mechanisms for
interlocutory review, see id. at 1695–96. Indeed, Gugliuzza
has conceded the lack of irreparable harm in this case.
Finally, we reject Gugliuzza’s argument that because the
issues on appeal in this case are purely legal in nature, and
our disposition of these issues could aid the bankruptcy court
by allowing it to aggregate all necessary fact-finding into a
single proceeding, the district court’s order should be deemed
“final” for purposes of § 158(d) under Bonner Mall. The
decision by the district court in this case does not mark the
conclusion of a discrete proceeding or fix the rights and
obligations of any party, Bullard, 135 S. Ct. at 1692, and
otherwise does not meet the standards set forth in Landmark
Fence. This four-factor test controls, even when a “case
arguably falls within” an exception to non-finality adopted in
the Bonner Mall line of cases. See Walthall v. United States,
131 F.3d 1289, 1293 (9th Cir. 1997). We therefore do not
have jurisdiction here.
IN RE GUGLIUZZA 29
IV
While we have recognized the need to take a pragmatic
approach to asserting jurisdiction over orders in bankruptcy
cases under § 158(d), we have long held that where the
district court’s decision “remanded to allow the bankruptcy
judge more accurately to determine the respective rights and
obligations of the parties,” then we “need not depart from the
usual finality doctrines of 28 U.S.C. § 1291,” and lack
jurisdiction over the appeal. In re Martinez, 721 F.2d at 265;
see also In re Stanton, 766 F.2d at 1287; In re Vylene Enters.,
968 F.2d at 895. This longstanding precedent has now been
confirmed by Bullard, which established that under the
pragmatic approach to finality in bankruptcy cases, we have
jurisdiction over rulings that are technically interlocutory
because they do not end the bankruptcy case as a whole, but
which do end a discrete proceeding within such cases.
Bullard, 135 S. Ct. at 1692. Bullard compels the conclusion
that rulings in bankruptcy cases that neither end a case nor a
discrete dispute, but rather remand for further fact-finding on
a central issue, are not final for purposes of § 158(d). Where
the “parties’ rights and obligations remain unsettled,” then
“‘[f]inal’ does not describe this state of affairs.” Id. at 1693.
Because a district court decision reversing a summary
judgment and remanding for further fact-finding is not final
by any measure, as Bullard expressly stated, we lack
jurisdiction in this case, and accordingly dismiss the appeal.
APPEAL DISMISSED.