The American Bar Association has filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, asking the full court to re-examine a panel decision and rule that a Bankruptcy Appellate Panel (BAP) legitimately can exercise full appellate powers in bankruptcy appeals.
At issue is whether the BAP of the Ninth Circuit has authority under the All Writs Act, which turns on the question of whether the BAP is a court “established by an act of Congress.” Appeals from bankruptcy courts typically go to the federal district court in the district in which the bankruptcy court sits unless there is a BAP, a panel of three bankruptcy judges from districts other than the district from which the appeal originated.
In this case, a panel of the Ninth Circuit said that BAPs do not have the authority to render final orders under the All Writs Act. In its brief, the ABA disagreed, detailing the association’s support for BAPs that stretches back more than two decades.
The brief noted that the ABA focuses specifically on the legitimacy of the bankruptcy panels and does not take a position on the facts presented in the case.
“If BAPs cannot exercise the powers all other appellate courts may invoke under the All Writs Act, they become a much feebler and much less functional alternative to the district courts for parties to bankruptcy appeals,” the ABA brief said. “The significant advantages the BAP affords — including reducing the district courts’ workload and providing a faster resolution of appeals by judges with specialized expertise — could thus be substantially undermined if the panel decision were to stand.”
The brief was filed in the case of Gary Lawrence Ozenne v. Chase Manhattan Bank.
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