UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2212
IN RE HILDA SOLTERO HARRINGTON,
Debtor,
ESTANCIAS LA PONDEROSA DEVELOPMENT CORPORATION,
Plaintiff, Appellee,
v.
HILDA SOLTERO HARRINGTON AND
RAFAEL DURAND MANZANAL,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Jose Luis Novas-Dueno for appellants.
Jaime Sifre Rodriguez with whom Luis A. Melendez-Albizu and
S nchez-Betances & Sifre were on brief for appellee.
April 30, 1993
CYR, Circuit Judge. After the chapter 11 estate of
CYR, Circuit Judge.
Hilda Soltero Harrington recovered judgment in an adversary
proceeding against Estancias La Ponderosa Development Corporation
(hereinafter "Ponderosa"), Ponderosa filed an untimely notice of
appeal and a motion to permit late filing under Bankruptcy Rule
8002(c). The bankruptcy court denied Ponderosa's motion to
permit late filing, and, accordingly, declined to docket
Ponderosa's notice of appeal. Ponderosa moved for
reconsideration, which was denied. Ponderosa then appealed the
denial of its motion for reconsideration to the district court.
Following a further appeal to this court to clarify the district
court's jurisdiction, the district court reversed the bankruptcy
court's denial of Ponderosa's motion for reconsideration of the
Rule 8002(c) motion, and remanded with directions to docket
Ponderosa's original notice of appeal. Appellants now appeal
from the district court remand order.1
An appellate order entered by a district court sitting
in bankruptcy is not appealable to the court of appeals under 28
U.S.C. 158(d) unless it is "final," i.e., unless it
conclusively determines "a discrete dispute within the larger
case." See In re G.S.F. Corp., 938 F.2d 1467, 1473 (1st Cir.
1991); Tringali v. Hathaway Mach. Co., 796 F.2d 553, 558 (1st
Cir. 1986); In re American Colonial Broadcasting Co., 758 F.2d
794, 801 (1st Cir. 1985); see also In re Saco Local Dev. Corp.,
1Appellants are chapter 11 trustee David Manzanal and
chapter 11 debtor Hilda Soltero Harrington.
711 F.2d 441, 445-46 (1st Cir. 1983) ("separable dispute over a
creditor's claim or priority"); 9 Collier on Bankruptcy 8001.06
(15th ed. 1991). As appellants see it, the district court remand
order is "final" because it directs the bankruptcy court to
docket Ponderosa's initial notice of appeal despite its untimely
filing, thereby resolving the one issue placed in dispute by
Ponderosa's appeal from the bankruptcy court's denial of the
motion for reconsideration. We disagree with appellants'
analysis.
We recognize that "'finality' is [to be] given a
flexible interpretation in bankruptcy," G.S.F. Corp., 938 F.2d at
1472-73, where necessary to accommodate concerns unique to the
nature of bankruptcy proceedings. See In re Empresas Noroeste,
Inc., 806 F.2d 315, 316-17 (1st Cir. 1986) (relaxation of
"finality" doctrine appropriate in bankruptcy proceedings only on
sufficient showing of "special considerations bankruptcy
proceedings deserve").2 Nevertheless, a district court remand
2As we acknowledged in G.S.F Corp., one such concern is that
"bankruptcy cases typically involve numerous controversies
bearing only a slight relationship to each other," G.S.F. Corp.,
938 F.2d at 1473 (emphasis added), and extraordinary delay could
result if parties whose substantive rights had been fully
litigated below were required to await resolution of the entire
bankruptcy case before taking an appeal. For example, we have
entertained an immediate appeal under 28 U.S.C. 1291 to resolve
a dispute over the authority and procedure for appointing a
chapter 11 trustee. See In re Plaza de Diego Shopping Ctr.,
Inc., 911 F.2d 820, 826 (1st Cir. 1990) (noting that "[i]f an
appeal were postponed until a plan of reorganization were con-
firmed, there would be no satisfactory way to vindicate the U.S.
Trustee's right to appoint, as there is no authority to appoint a
new trustee after confirmation" of a chapter 11 plan). On
somewhat different grounds, we have permitted immediate appeals
from district court orders lifting automatic stays. See
3
order in an intermediate appeal from a judgment entered in an
adversary proceeding is not final and appealable under section
158(d) of the Judicial Code, see Fed. R. Civ. P. 54(a), (b); Fed.
R. Bankr. P. 7054(a), 9002, 9014, unless it resolves all
procedural and substantive issues necessary to conclude the
entire appeal.3 Were appellate review available on demand
whenever a district court definitively resolved a contested legal
issue, without regard to whether the entire adversary proceeding
had been resolved, the "finality" rule would be eviscerated.
Cf., e.g., American Colonial Broadcasting, 758 F.2d at 801 ("[a]n
Tringali, 796 F.2d at 557; see also G.S.F. Corp., 938 F.2d at
1473 (citing In re Chateaugay Corp., 880 F.2d 1509, 1512 (2d Cir.
1989)). But see infra note 3.
3An important purpose of the Bankruptcy Reform Act of 1978
was to conform the practice and procedure in Bankruptcy Code
cases as near as may be to ordinary civil actions. See, e.g., 28
U.S.C. 158(c); Fed. R. Bankr. P. 7054(a), 8002 & 9002. With
that aim in mind, most Federal Rules of Civil Procedure are made
directly applicable in certain proceedings in bankruptcy. See,
e.g., Fed. R. Bankr. P. 7001-7071 (adversary proceedings), 9014
(contested matters). The Bankruptcy Rules recognize three
distinct types of proceedings within a bankruptcy case:
adversary proceedings, administrative proceedings, and contested
matters. Adversary proceedings are most like ordinary civil
actions; contested matters are substantially similar; whereas
most administrative proceedings are quite dissimilar to ordinary
civil actions.
The great similarity between an adversary proceeding in
bankruptcy and an ordinary civil action has particular
significance in the present context. In the typical adversary
proceeding, the "finality" determination closely resembles the
finality determination in "an ordinary 'case' [between the
parties] in a district court," In re Public Serv. Co., 898 F.2d
1, 2 (1st Cir. 1990). Just as an appeal in a civil action
normally may not be taken under section 1291 until all claims of
all parties to the action have been finally resolved, see Fed. R.
Civ. P. 54(b), so too must some special justification be shown
for departing from the finality rule relating to adversary
proceedings and contested matters, see Fed. R. Bank. P. 7054(a),
9002(1) & 9014. See also supra note 2.
4
order which 'does not finally determine a cause of action but
only decides some intervening matter pertaining to the cause, and
which requires further steps to be taken in order to enable the
court to adjudicate the cause on the merits,' is considered
interlocutory") (quoting In re Merle's, Inc., 481 F.2d 1016 (9th
Cir. 1973)).
The district court remand order contemplated no "signi-
ficant further proceedings" before the bankruptcy court; that is,
the bankruptcy court's role on remand docketing the late-filed
notice of appeal fairly can be characterized as "ministerial."
See In re Gould & Eberhardt Gear Mach. Corp., 852 F.2d 26, 29
(1st Cir. 1988); In re Riggsby, 745 F.2d 1153, 1156 (7th Cir.
1984)). Moreover, the narrow issue presented by Ponderosa's
current appeal to the district court, i.e., the propriety of the
bankruptcy court's denial of the Rule 8002(c) motion, has now
been decided. Nevertheless, upon the docketing of Ponderosa's
original notice of appeal from the judgment of the bankruptcy
court, all substantive and procedural claims raised by Ponderosa
in its challenge to the merits of the underlying bankruptcy court
judgment will remain to be determined in the district court.
Should the district court resolve the merits favorably to
appellants, the present appeal from the district court remand
order "may well [be] obviate[d] . . . ." Bowers v. Connecticut
Nat'l Bank, 847 F.2d 1019, 1023 (2d Cir. 1988); Riggsby, 745 F.2d
at 1155-56. Thus, the remand order is not final and appealable
under 28 U.S.C. 158(a),(d). See Fed. R. Civ. P. 54(a),(b);
5
Fed. R. Bankr. P. 7054(a), 9001(7), 9002(1), (2),(5).
Finally, no cognizable "hardship" or special
bankruptcy-related consideration is demonstrated simply by
pointing to the time and expense of litigating an intermediate
appeal to its conclusion in the district court. See Empresas
Noroeste, 806 F.2d at 317; see also In re El San Juan Hotel, 809
F.2d 151, 154 (1st Cir. 1987) ("The burden of litigation . . .
cannot alone constitute the irreparable harm necessary to warrant
appellate jurisdiction over an interlocutory order."). For
similar reasons, we reject Harrington's attempts to invoke the
"collateral-order" doctrine, see Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949), and our mandamus jurisdiction, see 28
U.S.C. 1651, neither of which is available unless the
challenged interlocutory ruling would result in "irreparable
harm" incapable of vindication on appeal from a later judgment.
See, e.g., Appeal of Licht & Semonoff, 796 F.2d 564, 571 (1st
Cir. 1986) ("collateral order" doctrine requires showing of
"irreparable harm"); In re Recticel Foam Corp., 859 F.2d 1000,
1006 (1st Cir. 1988) ("irremediable harm," beyond mere burden of
extended litigation, necessary for issuance of writ of mandamus).
The appeal is dismissed for lack of jurisdiction; costs
to appellee.
6