Gary Ozenne v. Chase Manhattan Bank

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE GARY LAWRENCE OZENNE, No. 11-60039
Debtor,
BAP No.
11-1208
GARY LAWRENCE OZENNE,
Appellant,
OPINION
v.

CHASE MANHATTAN BANK; OCWEN
LOAN SERVICING; OCWEN FEDERAL
BANK FSB,
Appellees.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Markell, and Dunn, Bankruptcy Judges, Presiding

Submitted December 9, 2014*
San Francisco, California

Filed March 25, 2016

Before: J. Clifford Wallace, Edward Leavy,
and Jay S. Bybee, Circuit Judges.

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 IN RE OZENNE

Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by Judge Bybee

SUMMARY**

Bankruptcy

Vacating the bankruptcy appellate panel’s (BAP) denial
of a petition for a writ of mandamus, the court of appeals held
that the BAP did not have jurisdiction to consider the
mandamus petition.

The court held that the BAP lacked jurisdiction under the
All Writs Act because the BAP, which is established by the
circuit judicial council pursuant to 28 U.S.C. § 158(b)(1), is
not one of the “courts established by Act of Congress.”

Concurring in the judgment only, and dissenting
otherwise, Judge Bybee wrote that the All Writs Act does not
require that a court be established directly by Congress. He
wrote that the majority’s opinion raises constitutional
problems because he doubts that Congress can delegate its
powers to create courts to the judicial branch.

**
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 OZENNE 3

COUNSEL

Gary Lawrence Ozenne, Corona, California, pro se Appellant.

Jeffrey S. Allison and Eric D. Houser, Houser & Allison,
Irvine, California, for Appellees.

OPINION

WALLACE, Senior Circuit Judge:

Gary Ozenne appeals from the Ninth Circuit bankruptcy
appellate panel’s (BAP) denial of his petition for a writ of
mandamus. Because the BAP is not a “court[] established by
Act of Congress” under the All Writs Act, 28 U.S.C.
§1651(a), we hold that the BAP did not have jurisdiction to
consider the petition.

I.

Several years after his bankruptcy case was closed,
Ozenne filed a motion for sanctions in the bankruptcy court.
[Bankr. Ct. Dkt. No. 111] The bankruptcy court ruled that it
lacked jurisdiction to grant relief [Id. No. 119] and Ozenne
filed a petition for writ of mandamus before the BAP [BAP
Dkt. 1]. Relying on its previous decision In re Salter, 279
B.R. 278 (B.A.P. 9th Cir. 2002), the BAP held that it had
jurisdiction pursuant to 28 U.S.C. § 1651 to consider the
petition, and then denied the petition. [Id. No. 4] Ozenne
appealed from that denial. [Id. No. 6]
4 IN RE OZENNE

II.

Although the question of whether the BAP has
jurisdiction to address a petition for a writ of mandamus has
not been raised on appeal, we are “bound to consider
jurisdictional defects sua sponte.” United States v. S. Pac.
Transp. Co., 543 F.2d 676, 682 (9th Cir. 1976). The BAP
cited subsection (a) of the All Writs Act as the source of its
authority to decide a writ of mandamus. Subsection (a) states
that “[t]he Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a).

The question therefore is whether the BAP is one of the
“courts established by Act of Congress.” We conclude that
the answer is no.

A.

The statute authorizing the BAP answers the question.
The BAP was not established by an “Act of Congress”;
rather, Congress gave the judicial council of each circuit
discretion to establish a bankruptcy appellate panel service.

The statute authorizing the creation of the BAP states that

[t]he judicial council of a circuit shall
establish a bankruptcy appellate panel service
composed of bankruptcy judges . . . appointed
by the judicial council . . . to hear and
determine, with the consent of all the parties,
appeals [from certain final judgments, orders,
 IN RE OZENNE 5

and decrees of bankruptcy judges] unless the
judicial council finds that –

(A) there are insufficient judicial resources
available in the circuit; or

(B) establishment of such a service would
result in undue delay or increased cost to
parties in [bankruptcy cases].

28 U.S.C. § 158(b)(1). The statute does not simply mandate
that the judicial council establish a BAP. Instead, a circuit’s
judicial council may establish a BAP based on its assessment
of the judicial resources available in the circuit and whether
the service would cause undue delay or increased cost to the
parties. 28 U.S.C. § 158(b)(1)(A)–(B). In addition, the BAP
continues only so long as the Judicial Council of the Circuit
wishes it to. 28 U.S.C. § 158(b)(2). The BAP is, in effect, a
temporary panel to be used only so long as the judicial
council chooses to keep it operational. BAP membership is
also on a temporary basis, as it is staffed by bankruptcy
judges who serve by request, in addition to their assigned role
as bankruptcy judges. 28 U.S.C. § 158(b); Judicial Council of
the Ninth Circuit, “Amended Order Continuing the
Bankruptcy Appellate Panel of the Ninth Circuit” (effective
November 18, 1988; as amended May 4, 2010), pg. 3. It has
none of the permanency of a court.

Pursuant to congressional authorization, the Judicial
Council of the Ninth Circuit established a BAP and has
continued the BAP’s service from time to time since then. See
Judicial Council of the Ninth Circuit, “Amended Order
Continuing the Bankruptcy Appellate Panel of the Ninth
Circuit.” Because the BAP is a panel service established by
6 IN RE OZENNE

the Judicial Council of the Ninth Circuit, not a “court
established by Act of Congress,” it does not have writ power
under the All Writs Act.1 Indeed, its “service” status is
demonstrated by the authority of the Judicial Council of the
Ninth Circuit to terminate the BAP at any time.

B.

The BAP itself previously concluded it had mandamus
power in In re Salter, but it was incorrect. In re Cardelucci,
285 F.3d 1231, 1234 (9th Cir. 2002) (concluding that “this
Court is not bound by a [BAP] decision”). In reaching its
conclusion, the BAP first considered various dictionary
definitions of the word “establish,” such as “‘[t]o set up on a
secure or permanent basis; to found,’” and “‘to bring into
existence.’” In re Salter, 279 B.R. at 281, quoting Oxford
English Dictionary Online and Webster’s New Collegiate
Dictionary 391 (1975). The BAP concluded that under such
definitions “Congress could be said to have ‘established’
BAPs . . . because BAPs did not exist until Congress provided
the authority for them.” Id.

Although the definitions used by the BAP do not differ
meaningfully from definitions in current legal sources, see,
e.g., Black’s Law Dictionary (10th ed. 2014) (defining
“establish” as “[t]o make or form; to bring about or into
existence”), the BAP’s application of these definitions
stretches the meaning of “established” too far, since under its
logic any tribunal whose existence is logically dependent in

1
Our dissenting colleague asserts the majority is willing to consider the
BAP a court. Not so. Congress knows full well how to the spell the word
“court” and we respect that difference and should interpret the meaning of
the statute as it has been written.
 IN RE OZENNE 7

some way upon action by Congress (including any tribunal
that receives any kind of federal funding or authorization)
could be empowered under the All Writs Act. The most
obvious meaning of the phrase “established by Act of
Congress” is that it covers those entities directly created by a
Congressional Act, such as the United States Court of
Appeals for Veterans Claims. See Veterans for Common
Sense v. Shinseki, 678 F.3d 1013, 1022 (9th Cir. 2012) (“The
Veterans Court also has authority under the All Writs Act to
issue ‘writs necessary or appropriate in aid of [its] jurisdiction
[ ].’”); cf. 38 U.S.C. § 7251 (“There is hereby established,
under Article I of the Constitution of the United States, a
court of record to be known as the United States Court of
Appeals for Veterans Claims”). The phrase may even be
broad enough to include entities created by a third party at the
express direction of Congress. Compare United States v.
Draughon, 42 C.M.R. 447 (1970) with Combest v. Bender, 43
C.M.R. 899 (1971).

However, a tribunal created by the independent actions,
choices, or judgment of a third party has not been
“established by Act of Congress,” even if authorization or
support from Congress was a logically necessary part of the
tribunal’s creation (such as a Judicial Council of the Circuit).
Thus, since the BAP was created by the Judicial Council of
the Ninth Circuit based on its own independent decision and
action, the BAP was not “established by Act of Congress”
even though a Congressional Act first suggested and
authorized its creation.

The BAP in In re Salter also reasoned that it possessed
writ power because the purpose of the All Writs Act was to
give federal courts the power to issue writs in aid of their
jurisdiction, and since “Congress . . . has given [the BAP]
8 IN RE OZENNE

general appellate powers over appeals from orders and
judgments of bankruptcy courts” and “[n]othing in 28 U.S.C.
§ 158 limits the powers implied from the fact of the BAPs’
creation as an appellate tribunal,” the BAP’s powers “must
include the traditional power to issue writs that aid in their
jurisdiction.” 279 B.R. at 282. This line of reasoning,
however, ignores the BAP’s limited jurisdiction.

The BAP could only exercise power under the All Writs
Act insofar as it is “in aid of” the BAP’s existing jurisdiction
because the All Writs Act does not confer an independent
source of jurisdiction. 28 U.S.C. § 1651(a); see, e.g., United
States v. Denedo, 556 U.S. 904, 914 (2009), citing Clinton v.
Goldsmith, 526 U.S. 529, 534–35 (1999) (“[T]he All Writs
Act and the extraordinary relief the statute authorizes are not
a source of subject-matter jurisdiction”).

The BAP’s jurisdiction is contingent upon parties’
consent. 28 U.S.C. § 158(b)(1) enshrines this consent
requirement, stating the BAP service will “hear and
determine, with the consent of all the parties, appeals” from
final judgments, orders, and decrees. Section 158(c)(1)
specifies how parties express their consent (or lack thereof)
to the BAP’s jurisdiction. While the default position is that
appeals from the bankruptcy court proceed to the BAP,
section 158(c)(1) provides both appellants and appellees the
opportunity to “opt-out” of having the BAP hear their case.
28 U.S.C. § 158(c)(1) states:

Subject to subsections (b) and (d)(2), each
appeal under subsection (a) shall be heard by
a 3-judge panel of the bankruptcy appellate
panel service established under subsection
(b)(1) unless—
 IN RE OZENNE 9

(A) the appellant elects at the time of filing
the appeal; or

(B) any other party elects, not later than 30
days after service of notice of the appeal;

to have such appeal heard by the district court.

Under the statute, appellants can choose to have the district
court hear their appeal. Otherwise, when appellants appeal to
the BAP, a notice of appeal issues and a 30-day time period
is triggered in which appellees can choose to have the district
court hear the case.

Petitions brought under the All Writs Act, however, do
not require the consent of the opposing party, which would
allow one party to bring unilaterally its case before the BAP.
Petitions for writ of mandamus do not trigger a notice of
appeal and election period, and appellees, as a result, never
have the opportunity to elect to have the district court hear
their case.

The situation in this case is instructive. Here, Ozenne
failed to file a timely notice of appeal pursuant to Rule
8003(a) of the Federal Rules of Bankruptcy Procedure.
Ozenne’s failure to appeal the bankruptcy court’s decision
meant that the election period was never triggered, and the
defendant never had the opportunity to elect to have the
district court hear the case. Thus, the BAP’s decision to
review the petition for writ of mandamus, even though it was
ultimately denied, was not “in aid of” its jurisdiction.

Finally, the BAP reasoned that since the Court of
Criminal Appeals (formerly known as the Court of Military
10 IN RE OZENNE

Review) was created using similar statutory language to that
used in connection with the creation of the BAP, and since
the Court of Military Appeals concluded that the Court of
Criminal Appeals was a court created by Congress in
Dettinger v. United States, 7 M.J. 216, 219 (C.M.A. 1979),
the BAP should also be considered a court created by
Congress under the same reasoning. In re Salter, 279 B.R. at
282–83. However, the statutory language under which the
Court of Criminal Appeals was created differs significantly
from the statutory language under which the BAP was
created: the former states in relevant part that “[e]ach Judge
Advocate General shall establish a Court of Criminal
Appeals,” 10 U.S.C. § 866(a), while the latter states in
relevant part that “[t]he judicial council of a circuit shall
establish a bankruptcy appellate panel service . . . unless the
judicial council finds that: (A) there are insufficient judicial
resources available in the circuit; or (B) establishment of such
service would result in undue delay or increased cost to
parties in cases under title 11,” 28 U.S.C. § 158(b)(1)
(emphasis added). The former language allows a Judge
Advocate General no discretion in determining whether to
establish a Court of Criminal Appeals, lending credence to
the conclusion of the Court of Military Appeals that the All
Writs Act covers the Court of Criminal Appeals. In contrast,
a Judicial Council of the Circuit must decide whether to
establish a bankruptcy appellate panel service based on its
own assessment of judicial resources and costs. This
distinction makes all the difference in determining whether,
under the All Writs Act, a tribunal was established by
Congress itself—either directly or by mandatory delegation—
or instead by a third party (such as the Judicial Council of the
Circuit) at its own discretion. Moreover, it is clear that in the
former Congress was creating a permanent court with
permanent judges, while in the latter the panel services was
 IN RE OZENNE 11

temporary, as the Judicial Council of the Circuit could
terminate the panel service at any time, and the judges were
not permanent but served for a limited time and served in
addition to the official assignment as a bankruptcy judge.

C.

The dissent contends that our opinion neuters the BAP.
The dissent ignores the BAP’s historically subordinate role
within the federal judiciary, and the constitutional issues that
would arise should the BAP be afforded power under the All
Writs Act.

While Congress may create certain federal tribunals
pursuant to its constitutionally delegated powers in Article I,
its authority to do so is not plenary. N. Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50, 63–64 (1982)
(plurality). Article III of the Constitution provides that “[t]he
judicial Power of the United States” shall be exercised by
judges who “hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their
Continuance in Office.” U.S. Const. art. III, § 1. Congress
cannot diminish the judicial branch’s power by granting
jurisdiction to Article I tribunals over cases that are within the
“judicial power of the United States” as described in Article
III, and, similarly, cannot “vest[] all ‘essential attributes’ of
the judicial power of the United States” in an adjunct court
shielded from proper review by an Article III court. N.
Pipeline, 458 U.S. at 63–64, 84–87 (plurality). To allow
Congress to do so undermines “the checks and balances . . .
built into the tripartite government,” as well as the “guarantee
that the process of adjudication itself remain[] impartial,”
12 IN RE OZENNE

because the federal judiciary would no longer “stand
independent” of the Legislature. Id. at 57–58 (plurality).

Guided by these principles, the Supreme Court in
Northern Pipeline struck down Congress’s broad grant of
authority to the bankruptcy courts under the Bankruptcy
Reform Act of 1978. Id. at 87 (plurality). The four-justice
plurality reasoned that bankruptcy courts under the 1978 Act
unconstitutionally exercised jurisdiction over cases within the
purview of Article III courts, and were not subject to
sufficient scrutiny by Article III courts. Id. at 83–87
(plurality). A full majority of the court, although failing to
agree on the scope of the “public rights” exception that allows
Congress to assign a narrow category of cases to Article I
legislative courts, concluded that the Act vested all “essential
attributes” of the judicial power in the bankruptcy courts, and
the courts were therefore not constitutionally acceptable
adjuncts. Id. at 69–71, 85–86 (plurality); see id. at 91
(Rehnquist, J., concurring).

In In re Burley, decided a few months after the Supreme
Court's decision in Northern Pipeline, our court addressed the
BAP's constitutionality in light of Northern Pipeline. 738
F.2d 981, 985–87 (9th Cir. 1984). Our court concluded that
the BAP, unlike the bankruptcy courts under the 1978 Act,
was constitutional. Id. at 985. In reaching that conclusion, our
court emphasized that the Article III court of appeals retained
the “essential attributes of the judicial power.” Id. at 985. Our
court retains that power because we can effectively review
the BAP's decisions de novo, have the authority to render
final decisions, and exercise "control over the BAP in that the
BAP can be established only by order of the circuit council."
Id.
 IN RE OZENNE 13

After the decision in In re Burley, Congress passed two
more acts affecting the establishment of BAPs. In 1984
Congress passed the “Bankruptcy Amendments and Federal
Judgment Act of 1984,” Pub.L. No. 98-353S 104(a), 98 Stat.
341 (1984), followed by an amendment to the bankruptcy
appeals statute in 1994, 28 U.S.C. § 158.

28 U.S.C. § 158, while enabling the increased use of
BAPs among the circuits, still limits the BAP’s role within
the federal judiciary. Id.; Jonathan Remy Nash & Rafael I.
Pardo, An Empirical Investigation into Appellate Structure
and the Perceived Quality of Appellate Review, 61 VAND.
L.REV. 1745, 1757 (2008). Primarily, the 1994 amendments
did not erase each circuit’s discretion in establishing a BAP.
28 U.S.C. § 158(b)(1). Moreover, the BAP does not have
authority to hear bankruptcy appeals “unless the district
judges for the district in which the appeal[] occur[s], by
majority vote, have authorized [the BAP] to hear and
determine appeals originating in such district.” 28 U.S.C.
§ 158(b)(2)(6).

The BAP also does not retain its own permanent set of
judges. Instead, the BAP is staffed by a rotating set of
bankruptcy judges who are appointed at the behest of the
judges of the Court of Appeals of the United States for the
circuit in which the bankruptcy court is located, and removed
at the behest of the Judicial Council of the Circuit. 28 U.S.C.
§ 152(a), (e); Judicial Council of the Ninth Circuit,
“Amended Order Continuing the Bankruptcy Appellate Panel
of the Ninth Circuit.” The rotating set of judges has narrow
jurisdiction to hear appeals from the bankruptcy court. Again,
the BAP only has jurisdiction to “hear and determine, with
14 IN RE OZENNE

the consent of all the parties, appeals” from final judgments,
orders, and decrees from the bankruptcy court. 28 U.S.C.
§ 158(b)(1).

The BAP’s limited jurisdiction is identified by Congress’s
treatment of the BAP as a “panel service.” 28 U.S.C.
§ 158(b)(1) (“The judicial council of a circuit shall establish
a bankruptcy appellate panel service. . . .”) (emphasis added).
While the dissent would have this court deviate from the
statute’s plain language and grant the BAP powers as though
Congress had established the BAP as something other than a
panel service, there is no reason to do so. Had Congress
intended for the BAP to exercise authority beyond its
prescribed role as a panel service, it would have provided for
it in the BAP’s authorizing statute. Compare 28 U.S.C.
§ 158(b)(1) with 10 U.S.C.A § 941 (“There is a court of
record known as the United States Court of Appeals for the
Armed Forces. The court is established under Article I of the
Constitution”), and 38 U.S.C.A. § 7251 (“There is hereby
established, under Article I of the Constitution of the United
States, a court of record to be known as the United States
Court of Appeals for Veterans Claims”), and 28 U.S.C. § 171
(“The president shall appoint. . . sixteen judges who shall
constitute a court of record known as the United States Court
of Federal Claims. The Court is declared to be a court
established under article I of the Constitution of the United
States”).

Our court, recognizing the BAP’s narrow jurisdiction, has
even concluded that the BAP’s decisions are not binding. In
re Silverman, 616 F.3d 1001, 1005 n. 1 (9th Cir. 2010)
(“[W]e treat the BAP's decisions as persuasive authority
given its special expertise in bankruptcy issues”) (emphasis
added); In re Cardelucci, 285 F.3d at 1234 (“[T]his Court is
 IN RE OZENNE 15

not bound by a [BAP] decision”); Bank of Maui v. Estate
Analysis, Inc., 904 F.2d 470, 472 (9th Cir. 1990) (“[I]t must
be conceded that BAP decisions cannot bind the district
courts themselves. As article III courts, the district courts
must always be free to decline to follow BAP decisions and
to formulate their own rules within their jurisdiction”).

The BAP’s subordinate role within the federal judiciary
is pertinent to our decision. Supreme Court and our court’s
precedents emphasize that the BAP derives its legitimacy
from the overview exercised by Article III courts, as well as
the BAP’s inability to infringe upon “the essential attributes
of judicial power.” N. Pipeline, 458 U.S. at 86–87; In re
Burley, 783 F.2d at 785–87. Even though the barriers to
Article III review the BAP would create by having authority
under the All Writs Act “seem innocuous at first blush,” they
nevertheless “chip away at the authority of the Judicial
Branch.” Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011); see
also id., quoting Reid v. Covert, 354 U.S. 1, 39 (1957)
(plurality opinion) (“A statute may no more lawfully chip
away at the authority of the judicial branch than it may
eliminate it entirely. ‘Slight encroachments create new
boundaries from which legions of power can seek new
territory to capture’”). First, allowing the BAP to entertain
writs of mandamus would circumvent the consent
requirement in 28 U.S.C. § 158(c)(1), effectively preventing
a party from seeking review of the dispute by an Article III
district judge as allowed by statute. Second, such authority
would frustrate our court’s appellate review by putting in
place an extra procedural hurdle that respondents would have
to surmount in order to receive review. See Fed. R. App. P.
21; Ninth Circuit R. 27-1 “Advisory Committee Note”.
16 IN RE OZENNE

The dissent nevertheless contends that the constitutional
issue raised by our decision is Congress’s unconstitutional
delegation of authority to the judicial branch. The dissent
argues that by allowing the Judicial Council of the Ninth
Circuit established the BAP, Congress has impermissibly
delegated its court-making authority to the courts. First,
Congress did not delegate BAP establishment to the courts–it
was delegated to an administrative authority, the Judicial
Council of the Circuits. The dissent repeatedly misses this
important distinction. It argues Congress gave the power to
create the BAP to the court. But this argument is irrelevant.
Clearly, this was an administrative responsibility given to an
administrative part of our system: the Judicial Council of the
Circuits. Second, because it is a temporary entity existing at
the option of the Judicial Council of the Circuit, it does not
have the same function or power of a court–thus its name as
a “panel” created or disbanded by the Judicial Council of the
Circuit.

The Supreme Court, in addressing separation-of-powers
concerns in cases involving the judicial branch, has explained
that there are “two dangers: first, that the Judicial Branch
neither be assigned nor allowed tasks that are more properly
accomplished by [other] branches, and second, that no
provision of law impermissibly threatens the institutional
integrity of the Judicial Branch.” Mistretta v. United States,
488 U.S. 361, 383 (1989) (internal quotations and citations
omitted). Our decision does not raise either concern.
Congress has not simply delegated all court-making authority
to the judicial councils of each circuit. Rather, Congress has
allowed judicial councils to take stock of the needs within
their circuit, and, based on those conclusions, to establish a
panel service that is limited in both the subject matter it can
adjudicate and its authority to render final decisions. The
 IN RE OZENNE 17

authorization continues only so long as the Judicial Council
of the Circuit on its own decides. 28 U.S.C. § 158(b)(2). The
Supreme Court has never held, nor has our court, that
Congress cannot authorize the judicial councils in each circuit
to establish a temporary panel service to adjudicate specific,
public rights, such as bankruptcy claims. See Stern, 131 S. Ct.
at 2609–11 (defining “public rights”).

III.

We therefore overrule In re Salter and hold that the BAP
is not a “court[] established by Act of Congress” under
subsection (a) of the All Writs Act, so it does not have
jurisdiction to entertain a mandamus petition. Our decision
does not leave parties without recourse to mandamus relief
from decisions by a bankruptcy judge, since subsection (a) of
the All Writs Act applies to federal district courts. Sec. &
Exch. Comm’n v. G. C. George Secs., Inc., 637 F.2d 685, 688
(9th Cir. 1981) (holding that “the district court . . . had the
authority to consider [petitioner’s] request for relief under the
All Writs Act,” and observing that “a district court’s powers
under § 1651 should be broadly construed” (internal
quotation marks omitted)).

We vacate the decision of the BAP and remand the case
with instructions to dismiss the petition for lack of
jurisdiction. Parties shall bear their own costs for the appeal.
Fed. R. App. P. 34(a)(4).

VACATED AND REMANDED.
18 IN RE OZENNE

BYBEE, Circuit Judge, concurring in the judgment but
vigorously disagreeing with everything else:

The All Writs Act provides that “[t]he Supreme Court and
all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). The majority holds that the
Bankruptcy Appellate Panel may not issue writs of
mandamus because it is not a “court[] established by Act of
Congress.” Maj. Op. at 17. Oh, the majority is willing, I
think, albeit begrudgingly, to admit that the BAP is a court;
it just doesn’t believe that it was “established directly by Act
of Congress.” That last sentence was, of course, a bit of a
cheat on my part: the statute doesn’t actually say that the
court must be “established directly” by Congress. But the
majority does. Maj. Op. at 4, 5–6. It has added a word to the
All Writs Act that is not there. And, for the reasons I will
explain, it is so unnecessary to do so, and it is going to cause
us major constitutional headaches.

I just can’t go there. I concur in the judgment only, and
respectfully dissent otherwise.

I

I am going to start with an observation: even among fly-
specks, this case is a nothing. We are dealing with the denial
of a writ of mandamus filed by a party with a penchant for
repeat (and likely frivolous) bankruptcy filings.1 And there

1
Ozenne filed some seven bankruptcy cases over the course of five
years.
 IN RE OZENNE 19

are several ways we could and should have disposed of this
case. Here is what happened.

A. Procedural History

“The crux of Ozenne’s grievance is that his home was
sold out from under him in violation of the bankruptcy stay
provisions.” Accordingly, several years after his bankruptcy
case had been closed out, he sought to reopen it to seek
damages for alleged violations of the automatic stay, made in
connection with the sale of his home. In 2007, Ozenne filed
a motion in the bankruptcy court seeking to “set aside” the
bankruptcy court’s earlier ruling, which held that under Fed.
R. Civ. P. 60, Ozenne could not reopen his case. Ozenne’s
reason for reopening the bankruptcy case was his reason for
all the numerous motions he has filed: to seek “damages
under 11 U.S.C. § 362, which allows for damages for
violation of a bankruptcy stay.” The bankruptcy court denied
the motion for lack of jurisdiction, on account of Ozenne’s
bankruptcy case having been closed for several years at that
point. Ozenne appealed that decision to the federal district
court, which held that “[t]he bankruptcy court was correct to
reject Ozenne’s motion,” because it was untimely under Rule
60. Ozenne then filed a direct appeal to this court, and a
three-judge panel summarily affirmed.

At that point Ozenne filed a “”Motion for Sanctions [for]
Violations of 11 USC 362(a)” in the bankruptcy court. In that
motion, Ozenne argued that a “recent decision in the 10th
Circuit Court of Appeals has ruled that bankruptcy courts
retain jurisdiction to hear violations of 11 USC 362, even
after the underlying bankruptcy case has been dismissed.” In
other words, the motion sought the same thing Ozenne has
been seeking for years: to reopen his case to determine
20 IN RE OZENNE

whether his home was sold in violation of the automatic stay
and to collect damages for it. The bankruptcy court held it
had no jurisdiction to grant relief. Ozenne never filed a
notice of appeal. Again, another judgment became final.

Ozenne then filed a petition for a writ of mandamus with
the BAP. That petition sought an order from the BAP,
requiring the bankruptcy court to exercise jurisdiction and
hold “a trial or hearing for the violations of law under
11 USC 362.” The BAP’s docket shows that the petition
received no response from the appellees, and the BAP denied
it and closed the case out in a matter of eighteen days. In its
decision, the BAP noted its authority to entertain writs under
the All Writs Act, recited the standard for receiving such
relief, but summarily held that Ozenne “has not met the
burden to establish that a writ of mandamus should be
issued.” Ozenne is now before us on a timely filed pro se
appeal from that decision.

B. How the Majority Should Have Handled This

First, although not entirely free from doubt given
Ozenne’s pro se briefing, this case is likely res judicata.
Ozenne has been doing the same thing for years. He admits
it. His own briefing notes that the bankruptcy court
“consistently ruled”, in “2003, 2007, [and] 2011,” that it
lacked jurisdiction to reopen Ozenne’s case and grant him
relief. I see no substantive difference between what Ozenne
asked the bankruptcy court to do in his 2007 motion and what
he asked it again in his 2011 motion. His 2007 motion ended
with a final judgment from this court affirming the district
court’s determination that Ozenne could not seek the relief he
sought—which happens to be the exact relief he sought in his
2011 motion in the bankruptcy court and his subsequent
 IN RE OZENNE 21

mandamus petition before the BAP. Assuming that Ozenne’s
description is correct, he missed the time to file a notice of
appeal on the bankruptcy court’s denial of his motion. So
that determination became final. Indeed, the number of final
judgments telling Ozenne “no” is hard to count.2 His claims
strike me as being barred by res judicata.

Second, we might also reach the merits and simply affirm
because Ozenne has not even come close to showing that he
is entitled to a writ of mandamus. He cites a single BAP
case, In re Johnson, 346 B.R. 190 (9th Cir. BAP 2006), and
that’s it. Ozenne has not shown that his “right to the issuance
of the writ is clear and indisputable.” DeGeorge v. U.S. Dist.
Court for Cent. Dist. of Cal., 219 F.3d 930, 934 (9th Cir.
2000) (internal quotation marks omitted) (noting that in
granting or denying a writ, courts consider whether the
petitioner (1) “has no other adequate means, such as a direct
appeal, to attain the relief he or she desires,” (2) “will be
damaged or prejudiced in a way not correctable on appeal,”
(3) the “district court’s order is clearly erroneous as a matter
of law,” (4) the “district court’s order is an oft-repeated error,
or manifests a persistent disregard of the federal rules,” and
(5) the “district court’s order raises new and important
problems, or issues of law of first impression”). This is an
equally plausible grounds to affirm.

Finally, as the majority’s opinion suggests, the BAP may
have lacked jurisdiction. Maj. Op. at 8–9. The BAP’s
appellate jurisdiction is predicated on the consent of the

2
As the appellees have noted, Ozenne’s “unsuccessful appeals of the
underlying issues herein included appeals to the BAP, the District Court,
twice to the California Court of Appeals, the U.S. Supreme Court which
denied certiorari, and to this Honorable Court.”
22 IN RE OZENNE

parties before it. See 28 U.S.C. § 158. And the issuance of
a writ under the All Writs Act requires pre-existing
jurisdiction. See 28 U.S.C. § 1651 (granting power courts to
issue “all writs necessary or appropriate in aide of their
respective jurisdictions” (emphasis added)). But at worst, the
facts here suggest that we dismiss this case only because we
lack evidence of the appellees’ consent, and therefore the
BAP did not have jurisdiction to consider this particular writ,
not all writs in general. So under that view, we just dismiss
the appeal and all go home.

I would resolve this case on any one of the above bases,
and thus I concur in the judgment only, insofar as that
judgment is that Ozenne loses his case. But instead of
stopping with the most obvious answers to a most obviously
meaningless case, the majority forges ahead, without even
calling for briefing, and grinds an axe with which to cut the
BAP off at the knees. The majority opinion is needless,
wrong, and raises serious constitutional concerns with the
separation of powers.

II

The majority labors mightily to avoid making a
concession that, if you read carefully, it still winds up
making: the BAP is a court. And really, what else can the
majority do? The BAP is “composed of bankruptcy judges,”
28 U.S.C. § 158(b)(1), serving on a “3-judge panel,” id.
§ 158(c)(1). The panel “hear[s] and determine[s] . . .
appeals” from “final judgments, orders, and decrees” of
bankruptcy courts. Id. § 158(a)(1), (b)(1). And if not
appealed to us, the BAP’s decisions are final and have
preclusive effect. In re Scovis, 249 F.3d 975, 980 (9th Cir.
2001) (“The BAP renders a final order when it affirms or
 IN RE OZENNE 23

reverses a bankruptcy court's final order.”). The majority
strains credulity when it says that the BAP “does not have the
same function or power of a court.” Maj. Op. at 16. Of
course it does. In its appellate function, the “bankruptcy
appellate panel . . . fill[s] the role of the [federal] district
courts.”3 Conn. Nat’l Bank v. Germain, 503 U.S. 249, 252
(1992); see also 28 U.S.C. § 158(a) (providing for appellate
jurisdiction of federal district courts over bankruptcy
decisions as an alternative to the BAP); Wellness Intern.
Network v. Sharif, 135 S. Ct. 1932, 1946 (2015) (“Congress
has supplemented the capacity of district courts through the
able assistance of bankruptcy judges.”); Northern Pipeline
Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 55 (1982)
(plurality opinion).

The majority scrupulously avoids addressing any of these
realities. Instead, like uttering “Bibbidi-Bobbidi-Boo” to turn
pumpkins into carriages, the majority believes that its own
incantation (“panel service” and “tribunal”) will transform the
BAP into something other than a court. I readily concede that
§ 158 calls the BAP a “panel service.” But if the majority
believes the BAP is not a court, it never says so. Indeed, if
the majority really thought the BAP was not a court at all, it
could have written a much shorter opinion, because under the
All Writs Act only “courts . . . may issue all writs necessary

3
For instance, the majority says the BAP’s decisions are “not binding.”
Maj. Op. at 14. Obviously they are not binding on Article III courts; but
that is beside the point. The ability to bind another court is not the
hallmark of a “court,” otherwise our federal district courts would not be
“courts,” as their decisions are similarly not binding. See Hart v.
Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001). What matters for
purposes of whether the BAP is a “court” is whether it issues judgments
that bind the parties. The majority’s response on this point is
conspicuously absent.
24 IN RE OZENNE

or appropriate.” 28 U.S.C. § 1651(a) (emphasis added). Had
the majority simply declared the BAP not a court, it could
have saved itself the gymnastics over the word “establish” in
§ 158.

I am skeptical that the absence of the magic word “court”
is significant here. Like the Tax Court—another Article I
court—the BAP’s “function and role in the federal judicial
scheme closely resemble those of the federal district courts,
which indisputably are ‘Courts of Law.’” Freytag v.
Comm’r, 501 U.S. 868, 891 (1991). The power the BAP
wields under § 158 is not that exercised by some mere
tribunal or administrative adjunct, like a special master or an
arbitrator. The BAP is an alternative to federal district courts
for parties appealing from the bankruptcy courts. 28 U.S.C.
§ 158(b)(1), (c)(1); see also Wellness, 135 S. Ct. at 1946;
Conn. Nat’l Bank, 503 U.S. at 252. By statute, appeals heard
by the BAP “shall be taken in the same manner as appeals in
civil proceedings generally are taken to the courts of
appeals.” 28 U.S.C. § 158(c)(2). Our own appellate
jurisdiction is the same whether the appeal originates in “the
bankruptcy court, the district court, or the bankruptcy
appellate panel.” 28 U.S.C. § 158(d)(2)(A). In all respects,
the BAP is treated by the statutes as equal in authority to the
district court and greater in authority to the bankruptcy court.
See, e.g., id. § 158(d)(2)(B), (D); Pub. L. No. 109-8, Title
XII, § 1233(b)(3)(A), (5)(A), (6), 119 Stat. 23, cited in
28 U.S.C. § 158 note. The one noticeable difference between
these courts’ jurisdiction is that the consent of the parties is
required to establish BAP jurisdiction. But the majority
cannot, by its repeated references to the consent aspect of
BAP jurisdiction, seriously mean that the bankruptcy courts,
for example, cease to be “courts” when their Article III
jurisdiction to adjudicate non-core proceedings hinges on the
 IN RE OZENNE 25

consent of the parties. See Wellness, 135 S. Ct. at 1944; cf.
Roell v. Withrow, 538 U.S. 580, 585–86 (2003) (noting the
consent-based civil jurisdiction of the United States
magistrate judges to dispose of cases and enter final
judgment). Is the majority suggesting, sub silentio, that the
bankruptcy courts are unconstitutional?

The majority similarly cannot dodge the fact that the BAP
is a court by telling us that it has “none of the permanency of
a court.” Maj. Op. at 5. “Permanency” as an attribute
inherent to a “court” is beyond me, in part because I do not
know what the majority means by “permanency.” Does it
mean populated by life tenured judges? If so, then Article I
courts are not courts. Does it mean constitutionally
permanent? If so, then only the Supreme Court is a court, see
U.S. Const. art. III, § 1; we don’t even count because we are
good only so long as Congress says so, see 28 U.S.C.
§§ 1291–1296 (establishing the jurisdiction of the courts of
appeals). The thing is, permanency is relative and tells us
little to nothing about whether a body is properly a “court.”
The Temporary Emergency Court of Appeals was not
permanent and was not meant to be. See Economic
Stabilization Act Amendments of 1971, Pub. L. No. 92-210,
§ 211, 85 Stat. 743 (creating the Temporary Emergency Court
of Appeals, to be populated by district and circuit judges
appointed at will by the Chief Justice); Act of October 29,
1992, Pub. L. No. 102-572, § 102, 106 Stat. 4506 (abolishing
the Temporary Emergency Court of Appeals). But it was a
court nevertheless. The same can be said of the original
Emergency Court of Appeals established during World War
II, see Emergency Price Control Act, Pub. L. No. 77-421,
§ 204, 56 Stat. 23, 31 (1942), and three-judge district courts
(which literally last for only the duration of a lawsuit),
28 U.S.C. § 2284, and state courts with judges sitting pro tem,
26 IN RE OZENNE

see, e.g., Cal. Const. art. 6, § 21; Okla. Const. art. 7-A, § 6;
Ind. Code § 33-31-1-12; Kan. Stat. Ann. § 20-310a; Wash.
Rev. Code. § 2.08.180.

The point is, what you call an adjudicative body and how
long it exists are much less indicative of whether that body is
a “court” than what the body actually does and the powers it
possesses. By the latter standard, the BAP is a court.

III

The All Writs Act provides that “courts established by
Act of Congress” may issue appropriate writs, such as a writ
of mandamus. 28 U.S.C. §1651(a). When Congress provided
for bankruptcy appellate panels, it provided that “[t]he
judicial council of a circuit shall establish a bankruptcy
appellate panel service . . . unless the judicial council finds”
that the circuit has insufficient judicial resources or the
service would result in undue delay or increase the cost of
appeal to parties. Id. § 158(b)(1). The majority concludes
that because of the “unless” clause, Congress did not
“establish” the BAP and, accordingly, the BAP is not a “court
established by Act of Congress,” but “a tribunal created by
the independent actions, choices, or judgment of a third
party.” Maj. Op. at 7.

The text of § 158 and the All Writs Act should be
sufficient to decide this issue. The BAP is plainly a court
established by an Act of Congress. Section 158 authorizes us,
through our judicial council, to populate the BAP. The
flexibility Congress gave us not to populate the BAP if our
peculiar circumstances dictate otherwise does not affect the
fact that the court we appoint draws its existence from
congressional authorization and direction. Our choice to
 IN RE OZENNE 27

effect or not to effect the panel authorized by Congress does
not change the fact that the court was created by “Act of
Congress.” And that is all that the All Writs Act demands.
The BAP is a court created by an Act of Congress and may,
in cases where it otherwise has jurisdiction, issue writs under
the All Writs Act. See In re Salter, 279 B.R. 278, 280–81
(9th Cir. BAP 2002).

The majority, because of a vague concern that the
definition of “established” would open up the writ power to
“any tribunal that receives any kind of federal funding or
authorization,” Maj. Op. at 6–7, proceeds to graft a new
qualifier onto the All Writs Act—that the court be “directly”
established by Act of Congress, id. at 7, 10. I do not see that
word anywhere in the All Writs Act, and would accordingly
decline to write it into the statute. Moreover, the majority’s
concern is unfounded. “The All Writs Act . . . is not an
independent grant of appellate jurisdiction,” 16 Charles Alan
Wright et al., Federal Practice & Procedure § 3932, at 470 (2d
ed. 1996), but is instead auxiliary in nature in aiding courts to
exercise their already-existing jurisdiction. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 175 (1803); see also In re
Previn, 204 F.2d 417, 418 (1st Cir. 1953). That means that
the jurisdiction of any court must be established and pre-
existing before it can issue an extraordinary writ. This, along
with the fact that only courts can use the All Writs Act, see
28 U.S.C. § 1651(a), diminishes any concern the majority
may be harboring about nameless federal tribunals using the
writ power.

Finally, the majority says its “decision does not leave
parties without recourse to mandamus relief from decisions
by a bankruptcy judge, since subsection (a) of the All Writs
Act applies to federal district courts.” Maj. Op. at 17. This
28 IN RE OZENNE

is hollow consolation indeed. Today’s ruling neuters the
BAP. Section 158 allows the parties to choose to have an
appeal heard in front of the BAP. See 28 U.S.C. § 158(b), (c),
(d). But buyer beware. The Supreme Court can issue writs
under the All Writs Act, 28 U.S.C. § 1651(a), and so can we,
see Cal. Energy Comm’n v. Johnson, 767 F.2d 631, 634 (9th
Cir. 1985), as can the district courts, SEC v. G.C. George
Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981), as can the
bankruptcy courts themselves, Nat’l Bank of Ark. v. Panther
Mountain Land Dev., LLC (In re Panther Mountain Land
Dev., LLC), 686 F.3d 916, 926 (8th Cir. 2012); Alderwoods
Group, Inc. v. Garcia, 682 F.3d 958, 972 n.24 (11th Cir.
2012); In re Johns-Manville Corp., 27 F.3d 48, 49 (2d Cir.
1994). But for reasons never fully explained by the majority,
Congress purportedly left the BAP out in the cold. Every
other court that can adjudicate the parties’ claims in a
bankruptcy case, except the BAP, can issue a writ in
furtherance of its already-existing jurisdiction to issue stays,
injunctions, and orders enforcing its own judgments. Under
the majority’s view, Congress has established, in Justice
Scalia’s memorable phrase, “a sort of junior-varsity [court],”
vested with some, but not all, of the ordinary powers of a
court. United States v. Mistretta, 488 U.S. 361, 427 (1989)
(Scalia, J., dissenting). I doubt the majority is correct.

IV

The majority’s opinion begs an answer to the following
question: if the BAP is not “a ‘court established by Act of
Congress,’” Maj. Op. at 5–6 (emphasis added), then who,
precisely, “established” this court?

If we accept the majority’s analysis, the BAP was
“established by the Judicial Council of the Ninth Circuit.”
 IN RE OZENNE 29

Maj. Op. at 5–6. This presents us with a second, far more
troubling question: Can Congress delegate its power to create
courts to the judicial branch? The majority says that the
answer is “yes,” and sees no problem. See Maj. Op. at 4
(“Congress gave the judicial council of each circuit discretion
to establish a bankruptcy appellate panel service.”); id. at 7
(concluding that “the BAP was created by the Judicial
Council of the Ninth Circuit” through an “authoriz[ation]”
from Congress). I am deeply skeptical of the constitutionality
of such an arrangement between Congress and the Judiciary.

First, we have no independent power under Article III to
create inferior courts. We are vested only with the “judicial
Power of the United States,” U.S. Const. art. III, § 1, and the
“judicial Power of the United States” does not encompass the
power to create other courts. It is the power to adjudicate
certain “Cases” and “Controversies” that arise between
adverse parties, “with such Exceptions, and under such
Regulations as the Congress shall make.” Id. art. III, § 2, cls.
1, 2; see also Muskrat v. United States, 219 U.S. 346, 356
(1911) (“Judicial power, . . . is the power of a court to decide
and pronounce a judgment and carry it into effect between
persons and parties who bring a case before it for decision.”
(internal quotation marks omitted)); Durousseau v. United
States, 10 U.S. (6 Cranch) 307, 314 (1810) (“The appellate
powers of the court . . . are given by the constitution. But
they are limited and regulated by the judicial [act], and by
such other acts as have been passed on the subject.”). By
contrast, Articles I and III expressly grant the power to
establish courts to Congress. U.S. Const. art. I, § 8, cl. 9
(“The Congress shall have Power . . . To constitute Tribunals
inferior to the supreme Court.”); id. art. III, § 1 (“The judicial
Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from
30 IN RE OZENNE

time to time ordain and establish.”). The distinction between,
and classification of, Article III and Article I courts—also
denominated “constitutional” and “legislative” courts—“has
been productive of much confusion and controversy.”
Glidden Co. v. Zdanok, 370 U.S. 530, 534 (1962) (plurality
opinion). But whatever the constitutional disconnect between
those two systems of courts, we have no power to establish a
bankruptcy court.4

4
There is, to take the example at hand, more than a little confusion over
the constitutional source of Congress’s power to establish the bankruptcy
courts. There are at least three theories, all of which have been rejected
by at least some part of the Court. First, some have argued that Congress
may rely on Article I to establish “Tribunals inferior to the Supreme
Court.” U.S. Const. art I, § 8, cl. 9. But a plurality of the Court has said
that this provision “plainly relates to the ‘inferior Courts’ provided for in
Art. III, § 1; it has never been relied on for establishment of any other
tribunals.” Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality
opinion). Second, others have argued that Congress derives its authority
from the power to “establish . . . uniform Laws on the subject of
Bankruptcies.” U.S. Const. art. I, § 8, cl. 4. However, a plurality of the
Supreme Court may have rejected that clause as a source of power for
creating bankruptcy courts, though it has not squarely addressed the issue.
Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 72–74
(1982) (plurality opinion). But see Wellness Int’l Network, LTD. v. Sharif,
135 S. Ct. 1932, 1970 n.7 (Thomas, J., dissenting) (noting that the
Northern Pipeline plurality was “considering whether Article III imposes
limits on Congress’ bankruptcy power,” not “whether Congress has the
power to establish bankruptcy courts as an antecedent matter”). Third, the
Court has denied that Congress can establish bankruptcy courts as an
“adjunct” to Article III courts, presumably relying on some combination
of Article III, § 1, and the Necessary and Proper Clause, Article I, § 8, cl.
18. See Stern v. Marshall, 131 S. Ct. 2594, 2619 (2011) (noting
bankruptcy judges’ ability to enter final judgments and concluding that
“[g]iven that authority, a bankruptcy court can no more be deemed a mere
‘adjunct’ of the district court than a district court can be deemed such an
‘adjunct’ of the court of appeals.”); see also Northern Pipeline, 458 U.S.
at 76–87 (plurality opinion).
 IN RE OZENNE 31

In response, the majority criticizes my premise. It
concludes that “Congress did not delegate BAP establishment
to the courts—it was delegated to an administrative authority,
the Judicial Council of the Circuits.” Maj. Op. at 16. In
separation-of-powers terms, this is not an “important
distinction,” id.; it is a distinction without a difference. The
Supreme Court has made abundantly clear that its separation
of powers “approach” does not differ as applied to
“nonadjudicatory activities that Congress has vested either in
federal courts or in auxiliary bodies within the Judicial
Branch.” Mistretta, 488 U.S. at 388 (emphasis added). If the
majority wants to argue that the Judicial Council is not
located in the Judicial Branch, it is paddling upstream.

The second problem with the delegation of power the
majority assumes is that it is unprecedented. To my
knowledge, there is no instance of Congress delegating its
court-making power to the courts; we have been afforded
other powers, but not the power to establish courts. Through
the Rules Enabling Act, 28 U.S.C. §§ 2071–77, Congress has
delegated to us rule-making authority over “the practice and
procedure of federal courts.” Sibbach v. Wilson, 312 U.S. 1,
9–10 (1941) (holding that Congress has the “undoubted
power” to delegate that authority); Wayman v. Southard,
23 U.S. (10 Wheat) 1, 43 (1825) (noting that rule-making
authority with respect to judicial proceedings may be
“conferred on the judicial department” by Congress). Those
rules, however, “may not expand or diminish the jurisdiction
conferred by Congress.” United States v. Jacobo Castillo,

We need not wade into this morass. It is sufficient to note that,
whatever the source (or not) of Congress’s authority to establish
bankruptcy courts, the Constitution does not vest any such authority in the
judiciary.
32 IN RE OZENNE

496 F.3d 947, 954 (9th Cir. 2007) (en banc). Nor may we
draw on our authority to appoint bankruptcy judges as the
source of power for establishing a bankruptcy appellate panel.
Our power to appoint “inferior Officers” is conferred by
Article II and authorized by statute. U.S. Const. art. II, § 2,
cl. 2; 28 U.S.C. § 152(a)(1). Accordingly, we can only
appoint such officers to existing offices, statutorily created by
Congress. See Edmond v. United States, 520 U.S. 651, 660
(1997) (noting that the Appointments Clause permits
Congress to vest the appointment power for inferior officers
in the courts “by Law” (quoting U.S. Const. art. II, § 2, cl. 2)
(emphasis added)). To take an even a more extreme example,
the Court approved the delegation involved in the power to
issue the Sentencing Guidelines by reference to our historical
involvement in the discretion-laden field of criminal
sentencing. See Mistretta, 488 U.S. at 390 (noting, in order
to justify the location of the Sentencing Commission within
the Judicial Branch, that “the sentencing function long has
been a peculiarly shared responsibility among the Branches
of Government” and that for “more than a century, federal
judges have enjoyed wide discretion” in sentencing). But
there is no history of courts making other courts. And while
novelty is not a death knell, it is no ringing endorsement of
constitutionality either. See Free Enter. Fund v. Public Co.
Accounting Oversight Bd. (PCAOB), 561 U.S. 477, 505
(2010) (“Perhaps the most telling indication of the severe
constitutional problem with the PCAOB is the lack of
historical precedent for this entity.” (internal quotation marks
omitted)).

Third, even if I thought Congress had delegated its
authority to establish courts to us, we could not accept the
delegation. The Supreme Court has held that Congress may
delegate “extrajudicial activities” to the Judiciary only if the
 IN RE OZENNE 33

delegated task has a “close relation to the central mission of
the Judicial Branch,” is not a “task[] . . . more properly
accomplished by [other] branches,” and does “not trench
upon the prerogatives of another Branch.” Mistretta,
488 U.S. at 388, 389–90 (quoting Morrison v. Olson,
487 U.S. 654, 680–81 (1988)). I am unpersuaded these
requirements would be met by a congressional delegation of
court-making power to the Judiciary. To begin with, I fail to
appreciate how court-creation has a “close relation to the
central mission of the Judicial Branch.” Our mission is to
interpret the law in resolving disputes between parties, not to
enlarge the superstructure of government. The gap between
promulgating rules of procedure, appointing Article I judges,
or propounding sentencing guidelines applicable in judicial
proceedings on the one hand, and creating new tribunals that
possess the power to issue final judgments on the other hand,
is as obvious as it is wide. Moreover, there are plenty of
reasons to conclude that creating courts is “more properly
accomplished” by Congress, and that we “trench upon”
Congress’s prerogatives in this case by reading § 158 as
delegating to the Judiciary the power to establish the BAP.
The separation of powers under our Constitution prohibits
one branch from usurping the powers of another or giving
away its power to check another Branch. United States v.
Nixon, 418 U.S. 683, 704 (1974) (“[T]he ‘judicial Power of
the United States’ . . . can no more be shared with the
Executive Branch than the Chief Executive, for example, can
share with the Judiciary the veto power, or the Congress share
with the Judiciary the power to override a Presidential
veto.”); see also Stern v. Marshall, 131 S. Ct. 2594, 2611–15
(2011) (permitting Article I bankruptcy courts to adjudicate
defamation claims violated separation of powers); PCAOB,
561 U.S. at 497 (dual-layer of for-cause protection over
agency board members violated separation of powers);
34 IN RE OZENNE

Clinton v. City of New York, 524 U.S. 417, 435–49 (1998)
(line-item veto); Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 225–26 (1995) (statute revising final judgment made by
Article III courts); Bowsher v. Synar, 478 U.S. 714, 732–34
(1986) (placing executive power in official removable only
by Congress); INS v. Chadha, 462 U.S. 919, 954–59 (1983)
(congressional override of executive execution of the law);
Northern Pipeline, 458 U.S. at 63–76 (plurality opinion)
(placement of judicial power over private rights outside of
Article III courts); Buckley v. Valeo, 424 U.S. 1, 126–29
(1976) (giving appointment power to Speaker of the House
and president pro tem of the Senate).

As I previously explained, the jurisdiction and existence
of both Article I and III lower courts depends “entirely on
statutory grants from Congress.” Evans v. Thompson,
518 F.3d 1, 5 (1st. Cir. 2008); see also Printz v. United States,
521 U.S. 898, 907 (1997) (“In accord with the so-called
Madisonian Compromise, Article III, § 1, established only a
Supreme Court, and made the creation of lower federal courts
optional with the Congress—even though it was obvious that
the Supreme Court alone could not hear all federal cases
throughout the United States.”); Palmore v. United States,
411 U.S. 389, 400–01 (1973) (“The decision with respect to
inferior federal courts, as well as the task of defining their
jurisdiction, was left to the discretion of Congress.”); Cary v.
Curtis, 44 U.S. (3 How.) 236, 245 (1845) (“[Congress]
possess[es] the sole power of creating the tribunals (inferior
to the Supreme Court) for the exercise of judicial power . . .
and of withholding jurisdiction from them in the exact
degrees and character which to Congress may seem proper
for the public good.”). In my view, this places Congress’s
Article I and III court-creating powers on a special plane in
separation of powers terms: The power to create inferior
 IN RE OZENNE 35

courts and define their jurisdiction is perhaps the principal
check that Congress possesses over the judiciary. Congress
may not delegate that power outside of itself, and it is no
answer that the judiciary is complicit in its exercise. PCAOB,
561 U.S. at 497 (“[T]he separation of powers does not depend
. . . on whether ‘the encroached-upon branch approves the
encroachment[.]’” (quoting New York v. United States,
505 U.S. 144, 182 (1992)); Wellness, 135 S. Ct. at 1955
(Roberts, C.J., dissenting) (“A branch’s consent to a
diminution of its constitutional powers . . . does not mitigate
the harm or cure the wrong.”).

The majority responds with a non sequitur, contending
my approach “ignores the BAP’s historically subordinate role
within the federal judiciary.” Maj. Op. at 11. Not so. I agree
that the bankruptcy courts (including the BAP, which is a
court) “derive[] [their] legitimacy from the overview
exercised by Article III courts.” Maj. Op. at 15. But I do not
see how Congress’s decision to permit the BAP to use the
writ power “chip[s] away at the authority of the Judicial
Branch.” Maj. Op. at 15. Does the majority really believe
that Congress could not amend the All Writs Act to include
the BAP by name without offending Article III?
Surprisingly, the majority has expressed no concern with
bankruptcy courts invoking the All Writs Act. Surely they
are “courts” established by act of Congress. See Panther
Mountain, 686 F.3d at 926 (holding that bankruptcy courts
can issue writs under the All Writs Act); Alderwoods Group,
682 F.3d at 972 n.24 (same); In re Johns-Manville Corp.,
27 F.3d at 49 (same). But perhaps not under the majority’s
ruling. And to the extent the majority is concerned about
“frustrat[ing] our court’s appellate review” of BAP decisions,
Maj. Op. at 15, the majority needs reminding that it is
vacating the BAP’s order. There is little more that could
36 IN RE OZENNE

demonstrate that the BAP remains “subordinate” to us. Maj.
Op. at 11.

I do not purport to solve these interesting constitutional
quandaries raised by the majority’s opinion. But the
majority’s opinion is a problem. And the questions are both
squarely raised and, unfortunately, entirely avoidable. We
can and should avoid rendering a decision that radiates with
such constitutional difficulty.

V

It is a basic tenet of both statutory interpretation and
constitutional law that “where an otherwise acceptable
construction of a statute would raise serious constitutional
problems,” we must “construe the statute to avoid such
problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trade Council, 485 U.S. 568, 575 (1988).
This principle alone would counsel against the majority’s
construction of the All Writs Act. But the constitutional
avoidance canon only applies when there are two plausible
readings of a statute. McFadden v. United States, 135 S. Ct.
2298, 2307 (2015). “It has no application in the interpretation
of an unambiguous statute such as this one.” Id. (internal
quotation marks omitted). There is no reason to read into the
All Writs Act the word “directly.” Congress established
bankruptcy appellate panels, and authorized us to adapt them
to our needs. When Congress established the BAP it
necessarily authorized the BAP to “issue all writs necessary
or appropriate in aid of [its] respective jurisdiction[] and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651(a).

I respectfully, but emphatically, dissent.