In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3465 & 10-3466
IN RE:
R ENE R. O RTIZ, D OUGLAS L. L INDSEY, and
V ALERIE JONES,
Debtors.
R ENE R. O RTIZ, D OUGLAS L. L INDSEY, and V ALERIE JONES,
Plaintiffs-Appellants,
v.
A URORA H EALTH C ARE, INC.,
Defendant-Appellee.
IN RE:
K ATHY B EMBENEK and
S USAN D ANDRIDGE,
Debtors.
K ATHY B EMBENEK and S USAN D ANDRIDGE,
Plaintiffs-Appellants,
v.
A URORA H EALTH C ARE, INC.,
Defendant-Appellee.
2 Nos. 10-3465 & 10-3466
Appeals from the United States Bankruptcy Court
for the Eastern District of Wisconsin.
Nos. 09-02199 & 09-02469—Susan V. Kelley, Bankruptcy Judge.
A RGUED F EBRUARY 22, 2011—D ECIDED D ECEMBER 30, 2011
Before W ILLIAMS and T INDER, Circuit Judges, and
G OTTSCHALL, District Judge.
T INDER, Circuit Judge. Wisconsin medical provider
Aurora Health Care, Inc. filed proofs of claim in an esti-
mated 3,200 bankruptcy cases in the Eastern District
of Wisconsin from June 2003 to December 2008 that
listed the debtors’ medical treatment information. The
filings were public and available on the court’s docket.
Two groups of debtors filed separate class action
lawsuits against Aurora under a Wisconsin statute that
allows individuals to sue if their health care records are
disclosed without permission. See Wis. Stat. § 146.84.
The bankruptcy judge granted Aurora summary judg-
ment in both cases. We granted direct appeal. But
granting direct appeal, although appearing proper then,
was improvident given the Supreme Court’s recent
holding in Stern v. Marshall that bankruptcy judges lack
authority under Article III of the Constitution to enter
The Honorable Joan B. Gottschall, United States District
Court for the Northern District of Illinois, sitting by designation.
Nos. 10-3465 & 10-3466 3
final judgments on claims that constitute “the stuff of the
traditional actions at common law tried by the courts at
Westminster in 1789.” 131 S. Ct. 2594, 2609 (2011) (quoting
N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 90 (1982) (Rehnquist, J., concurring in judgment)).
Like the debtor’s counterclaim in Stern v. Marshall, the
debtors’ claims are based on a state law that is “inde-
pendent of the federal bankruptcy law” and “not neces-
sarily resolvable by a ruling on the creditor’s proof of
claim in bankruptcy.” Id. at 2611. The responsibility for
deciding the debtors’ claims “rests with Article III
judges in Article III courts.” Id. at 2609. Even though
Congress gave the bankruptcy judge statutory authority
to adjudicate the debtors’ claims as “core” matters under
28 U.S.C. § 157(b), Stern v. Marshall reveals the absence
of constitutional authority for the bankruptcy judge to
enter summary judgment, or any form of final judgment,
on the debtors’ claims. Without a final judgment we
lack a statutory basis for appellate jurisdiction. Thus,
we must dismiss these appeals.
I. Background
The debtors alleged that Aurora violated Wisconsin
Statute section 146.82 by filing proofs of claim revealing
their medical information. Wisconsin Statute section
146.82(1) mandates that “[a]ll patient health care records
shall remain confidential” with certain exceptions in
section 146.82(2). The debtors sought actual damages,
statutory exemplary damages of $25,000 per class mem-
ber, and their costs and fees under Wisconsin Statute
4 Nos. 10-3465 & 10-3466
section 146.84(1)(b) for Aurora’s alleged willful violation
of section 146.82. A first set of debtors, appellants Rene
Ortiz, Douglas Lindsey, and Valerie Jones (the “Ortiz
debtors”), filed a class action adversary complaint in
the U.S. Bankruptcy Court for the Eastern District of
Wisconsin. (The district court refers all bankruptcy cases
to its bankruptcy judges. See 84-1 Order of Reference,
available at www.wieb.uscourts.gov/index.php/orders-
rules/rules/general-orders (last visited Dec. 22, 2011).) The
complaint defined the class as all Chapter 13 filers in
Wisconsin’s Eastern District where Aurora filed proofs
of claim disclosing confidential medical information. A
second pair of debtors, Kathy Bembenek and Susan
Dandridge (the “Bembenek debtors”), filed a class action
complaint in a Wisconsin state court based on the
same statute but expanded the proposed class to all of
Wisconsin. Aurora removed the Bembenek debtors’ case
to the bankruptcy court under 28 U.S.C. § 1452, which
authorizes removal of all cases arising under Title 11
or arising in or related to cases under Title 11. See 28 U.S.C.
§§ 1334 & 157(a).
Both sides sought to avoid litigating the case in the
bankruptcy court but also opposed the others’ proposed
forum. The Ortiz debtors filed a motion for the bank-
ruptcy judge to abstain from jurisdiction in favor of a
Wisconsin court, see 28 U.S.C. § 1334(c)(1) & (2), and
the Bembenek debtors filed a motion for the bankruptcy
judge to remand the case back to the Wisconsin court,
see 28 U.S.C. § 1452(b). Aurora filed motions in both
cases seeking to have the district court withdraw the ref-
erence from the bankruptcy judge. See 28 U.S.C. § 157(d).
Nos. 10-3465 & 10-3466 5
The bankruptcy judge denied the abstention and the
remand motions for essentially the same reason: the
cases constituted core proceedings because the debtors’
claims could only arise in a bankruptcy context and
Congress included the allowance or disallowance of
claims and counterclaims by the estate against persons
filing claims against the estate in its definition of core
proceedings. See 28 U.S.C. § 157(b)(2)(B) & (C). The
district court then denied Aurora’s motions to with-
draw the reference because the debtors’ claims
were core proceedings involving counterclaims by the
debtors’ bankruptcy estate against a claimant. See id.
§ 157(b)(2)(C). The district court found that the bank-
ruptcy court was well-suited to address whether bank-
ruptcy law required Aurora to disclose the material to
which the debtors objected and that it was familiar
with the cases’ facts and circumstances.
The bankruptcy judge then dismissed the Ortiz debtors’
complaint on Aurora’s motion for summary judgment
because it found that Wisconsin Statute section 146.84
required proof of actual damages and that the debtors
failed to point to specific evidence in the record to
support the debtors’ assertion that the existence of
actual damages was in dispute. In re Ortiz, 430 B.R.
523, 534-35 (Bankr. E.D. Wis. 2010). The bankruptcy
judge also dismissed the Bembenek debtors’ case for the
same reasons. Aurora joined in the debtors’ motions for
certification of a direct appeal under 28 U.S.C. § 158(d)(2),
which gives us jurisdiction over appeals that would
normally go to the district court under 28 U.S.C. § 158(a).
The bankruptcy judge granted the motions under
6 Nos. 10-3465 & 10-3466
28 U.S.C. § 158(d)(2)(B)(ii), which states that if the bank-
ruptcy court “receives a request made by a majority of
the appellants and a majority of appellees” to certify
an appeal, the bankruptcy court “shall make the certif-
ication.” A motions panel of our court authorized the
parties to proceed as a direct appeal, see id. § 158(d)(2)(A),
and the cases were consolidated.
II. Analysis
When we held argument in this case on February 22,
2011, our appellate jurisdiction appeared secure under
28 U.S.C. § 158(d)(2), which gives us jurisdiction to hear
appeals that would typically go first to the district
court. Specifically, we “have jurisdiction of appeals de-
scribed in the first sentence of” § 158(a) if the bankruptcy
judge certified the matter and we authorized it, id.
§ 158(d)(2)(A), as happened here. The appeals described
in the first sentence of § 158(a) are those:
(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 inter-
locutory orders and decrees; and, with leave of
the court, from interlocutory orders and decrees,
of bankruptcy judges entered in cases and pro-
ceedings referred to the bankruptcy judges
under section 157 of this title.
Nos. 10-3465 & 10-3466 7
When we authorized the appeal, Aurora and the
debtors maintained that the appeals were from final
judgments or orders—namely, the bankruptcy judge’s
grant of summary judgment and dismissal of the debtors’
complaints. Dubbing the bankruptcy judge’s decision a
final judgment appeared correct then, but that was
before the Supreme Court decided Stern v. Marshall,
which held that bankruptcy judges lack authority under
Article III to enter final judgments on claims that con-
stitute “the stuff of the traditional actions at common
law tried by the courts at Westminster in 1789.” 131 S. Ct.
at 2609 (quoting N. Pipeline, 458 U.S. at 90 (Rehnquist, J.,
concurring in judgment)).
Because we have an independent duty to determine
whether we have jurisdiction, e.g., Maddox v. Love, 655
F.3d 709, 715 (7th Cir. 2011), we ordered supplemental
briefing on three issues: (1) whether the bankruptcy
judge had constitutional authority to issue final judg-
ments, orders, or decrees when it ordered the debtors’
complaints dismissed; (2) whether those orders should
be considered interlocutory orders or decrees within the
meaning of 28 U.S.C. § 158(a)(3), final decisions, judg-
ments, orders, or decrees within the meaning of 28 U.S.C.
§ 158(d)(1), or proposed findings of fact and conclusions
of law under 28 U.S.C. § 157(c)(1); and (3) given the
answers to these questions, whether we had authority
under 28 U.S.C. § 158(d)(2)(A), or any other provision,
to grant direct appeal.
The first question requires a close reading of Stern v.
Marshall. Although the Court noted that the question
8 Nos. 10-3465 & 10-3466
presented was “narrow,” it was quite significant as Con-
gress “may no more lawfully chip away at the authority
of the Judicial Branch than it may eliminate it entirely.”
131 S. Ct. at 2620. The Court held that Article III pro-
hibited Congress from giving bankruptcy courts
authority to adjudicate claims that went beyond the
claims allowance process. Id. at 2618. The decision
rebuffed an intrusion into the Judicial Branch that
would “compromise the integrity of the system of sepa-
rated powers and the role of the Judiciary in that
system, even with respect to challenges that may seem
innocuous at first blush.” Id. at 2620.
But before we address the constitutional question, we
must establish that Congress gave bankruptcy courts
authority to issue final judgments on the debtors’ claims.
28 U.S.C. § 1334(a) gives district courts “original and
exclusive jurisdiction of all cases under title 11.” Under
28 U.S.C. § 157(a), district courts may refer “any or all”
bankruptcy cases and proceedings to the district’s bank-
ruptcy judges. Congress delineated three types of bank-
ruptcy proceedings: those (1) “arising under title 11,”
(2) “arising in” a title 11 case, and (3) “related to a case
under title 11.” 28 U.S.C. § 157(a). The type of proceeding
matters for determining whether a bankruptcy court
had statutory authority to issue a final judgment.
Congress permits bankruptcy judges to “hear and deter-
mine . . . all core proceedings arising under title 11, or
arising in a case under title 11.” 28 U.S.C. § 157(b)(1).
“[C]ore proceedings are those that arise in a bank-
ruptcy case or under Title 11.” Stern, 131 S. Ct. at 2605.
The Court rejected an argument that assumed the ex-
Nos. 10-3465 & 10-3466 9
istence of a category of core proceedings that neither
arise in a Title 11 case or under Title 11. Instead, there
are two options: (1) core proceedings that arise in a
Title 11 case or arise under Title 11, and (2) those that
otherwise relate to a case under Title 11. Id. Under 28
U.S.C. § 157(b)(1), when a proceeding is core, a bank-
ruptcy judge “may enter appropriate orders and judg-
ments, subject to review under” 28 U.S.C. § 158. This
statutory authorization includes authority to enter final
judgments. Stern, 131 S. Ct. at 2605.
The debtors’ claims fit within the category of “arising
in” cases generally defined as “administrative matters
that arise only in bankruptcy cases.” In re Repository
Techs., Inc., 601 F.3d 710, 719 (7th Cir. 2010) (quoting In re
Commercial Loan Corp., 363 B.R. 559, 565 (Bankr. N.D. Ill.
2007)). Like the state-law claims in Repository Technologies,
the debtors’ claims would have “no existence outside of
the bankruptcy,” id. (quoting Stoe v. Flaherty, 436 F.3d
209, 216 (3d Cir. 2006)), and are thus deemed “arising
in” a bankruptcy case because the claims are “predicated
on the defendants’ participation in” the debtors’ bankrupt-
cies, id. at 720; see also Grausz v. Englander, 321 F.3d
467, 471-72 (4th Cir. 2003) (finding a debtor’s claim
against a law firm for malpractice in his bankruptcy
within “arising in” jurisdiction because it would have
“no practical existence but for the bankruptcy” (internal
quotation marks omitted)). Because the debtors’ claims
arise in their bankruptcies, they are core matters Congress
purported to give the bankruptcy judge authority to ad-
judicate. The debtors’ claims are also “core proceedings”
under 28 U.S.C. § 157(b)(2)(C)’s broad inclusion of all
10 Nos. 10-3465 & 10-3466
“counterclaims by the estate against persons filing
claims against the estate.”
But because congressional authorization must, of
course, be constitutional, we now examine whether
Congress exceeded the limits of Article III in author-
izing bankruptcy judges to enter final judgments in
the debtors’ claims. Stern v. Marshall gives us a definitive
answer based on “very basic principles” of Article III.
131 S. Ct. at 2600.
Vickie Lynn Marshall, more commonly known as
Anna Nicole Smith, was married to wealthy Texan J.
Howard Marshall II. Id. at 2601. Before J. Howard died,
Vickie sued in Texas state probate court claiming
J. Howard’s son E. Pierce Marshall fraudulently
induced J. Howard to exclude her from what even-
tually would be J. Howard’s will. Id. After J. Howard
died, Vickie filed for bankruptcy in California. Id. Pierce
filed a complaint in her bankruptcy proceeding alleging
that Vickie defamed him by getting her lawyers to tell
the media that he fraudulently gained control of his fa-
ther’s money. Id. He asserted that his claim was not
dischargeable in her bankruptcy and later filed a proof
of claim seeking to recover damages from Vickie’s bank-
ruptcy estate. Id. Vickie responded by filing a counter-
claim for tortious interference with the gift she
expected from J. Howard. Id. The bankruptcy judge
granted Vickie judgment on her counterclaim after
a bench trial, awarding her over $400 million in com-
pensatory and $25 million in punitive damages. Id. Mean-
while, the Texas court conducted a jury trial on the
Nos. 10-3465 & 10-3466 11
merits of the dispute and found in Pierce’s favor. Id. at
2602. The district court found that Vickie’s counter-
claim was not core and thus treated the bankruptcy
court’s judgment as proposed rather than final. Id. After
a trip to the Supreme Court and back on another issue,
the court of appeals held that Vickie’s counterclaim
was not a core proceeding. Id. (citing In re Marshall, 600
F.3d 1037, 1059 (9th Cir. 2010)). Thus, the Texas court’s
judgment became the earliest final judgment on the
matter requiring the district court to afford preclusive
effect to the Texas court’s judgment in Pierce’s favor. Id.
at 2602-03 (citing In re Marshall, 600 F.3d at 1064-65).
The Supreme Court again granted certiorari and held
that although Vickie’s counterclaim against Pierce was
a core proceeding under 28 U.S.C. § 157(b)(2)(C), id. at
2604, Article III prohibited the bankruptcy judge from
entering a final judgment on Vickie’s counterclaim, id.
at 2620. “When a suit is made of ‘the stuff of the tradi-
tional actions at common law tried by the courts at West-
minster in 1789,’ and is brought within the bounds
of federal jurisdiction, the responsibility for deciding
that suit rests with Article III judges in Article III
courts.” Id. at 2609 (quoting N. Pipeline, 458 U.S. at 90
(Rehnquist, J., concurring in judgment)). Congress may
not withdraw “from judicial cognizance any matter
which, from its nature, is the subject of a suit at the com-
mon law, or in equity, or admiralty.” Id. (quoting
Murray’s Lessee v. Hoboken Land & Improvement Co., 59
U.S. 272, 18 How. 272, 284 (1856)). Because bankruptcy
judges lack tenure and salary protections, the “defining
characteristics of Article III judges,” id., the Court had to
12 Nos. 10-3465 & 10-3466
decide if the bankruptcy judge improperly exercised
the “judicial Power of the United States” in entering a
final judgment on Vickie’s counterclaim, id. at 2611. The
claim did not involve so-called “public rights” and did
not flow from a federal statutory scheme or involve a
particularized area of the law. Id. at 2614-15. Instead,
the counterclaim involved “the most prototypical
exercise of judicial power: the entry of a final, binding
judgment by a court with broad substantive jurisdiction,
on a common law cause of action, when the action
neither derives from nor depends upon any agency
regulatory regime.” Id. at 2615.
The Court then examined whether Pierce’s filing of a
proof of claim gave the bankruptcy judge authority to
adjudicate Vickie’s counterclaim and held that because
the counterclaim merely sought to augment her bank-
ruptcy estate, Pierce’s filing of a claim made no dif-
ference. Id. at 2615-16. The bankruptcy judge did not
rule on Vickie’s counterclaim as part of the process for
allowing or disallowing Pierce’s claim, id. at 2616, nor
was Vickie’s counterclaim “integral to the restructuring
of the debtor-creditor relationship,” id. at 2617 (quoting
Langenkamp v. Culp, 498 U.S. 42, 44 (1990) (per curiam)).
Vickie’s bankruptcy did not “make any difference” in
characterizing her tortious interference counterclaim
because state law creates and defines property interests.
Id. at 2616 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas
& Elec. Co., 549 U.S. 443, 451 (2007)). The Court distin-
guished cases involving preferences in that they “in
effect increase that creditor’s proportionate share of the
estate,” and require a ruling before adjudicating the
Nos. 10-3465 & 10-3466 13
creditor’s proof of claim. Id. (citing Katchen v. Landy, 382
U.S. 323, 330 (1966)). By contrast, Vickie’s counterclaim
involved factual and legal determinations the bank-
ruptcy judge did not dispose of in addressing Pierce’s
defamation proof of claim. Id. at 2617. Federal law
created the right to recovery in a preference action while
Vickie’s counterclaim was a state tort action that existed
“without regard to any bankruptcy proceeding.” Id.
at 2618.
Aurora argues that the debtors’ claims are different
than Vickie’s counterclaim because the debtors’ claims
go to the heart of the bankruptcy judge’s management
of its Chapter 13 cases. Every court, it maintains, has
authority to resolve disputes claiming that the way one
party acted in the course of the court’s proceedings vio-
lated another party’s rights. Yet Aurora assumes that
bankruptcy judges are akin to Article III judges by
citing cases involving not legislative courts but Article III
courts. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44
(1991) (holding that a district court has inherent power
to vacate its own judgment); Link v. Wabash R. Co., 370
U.S. 626, 630-31 (1962) (holding that district courts have
the inherent power to dismiss a complaint); United States
v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (noting
that federal courts have certain implied powers). The
difference between those Article III courts and the bank-
ruptcy court goes to the constitutional underpinning
of Stern v. Marshall’s holding: “Article III could neither
serve its purpose in the system of checks and balances
nor preserve the integrity of judicial decisionmaking if
the other branches of the Federal Government could
14 Nos. 10-3465 & 10-3466
confer the Government’s ‘judicial Power’ on entities
outside Article III.” 131 S. Ct. at 2609. That the factual
circumstances of the debtors’ claims arise from bank-
ruptcy procedures does not alter the fact that bank-
ruptcy judges are not Article III judges. The question is
whether the nature of the debtors’ claims allowed
Congress to withdraw them from “the bounds of fed-
eral jurisdiction.” Id. at 2609.
Like Vickie’s counterclaim, the debtors’ claims involve
“private parties,” id. at 2614, disputing interests “defined
by state law,” id. at 2616 (quoting Travelers, 549 U.S. at
451), not historically determined by the executive or
legislative branches, id. at 2613-14 (citing N. Pipeline, 458
U.S. at 68). There are no government parties involved; it
is a private matter involving “the liability of one
individual to another” under a Wisconsin law. Id. at 2612
(quoting Crowell v. Benson, 285 U.S. 22, 50, 51 (1932)).
The debtors’ claimed right to relief does not flow from
a federal statutory scheme, id. at 2614, or address a
“particularized area of the law” where “Congress
devised an ‘expert and inexpensive method for dealing
with a class of questions of fact which are particularly
suited to examination and determination by an admin-
istrative agency specially assigned to that task,’ ” id. at
2615 (quoting Crowell, 285 U.S. at 46). The debtors’ claims
are simply ordinary state-law claims. See id. at 2609.
Just as Pierce’s filing of a proof of claim in Vickie’s
bankruptcy did not give the bankruptcy judge authority
to adjudicate her counterclaim, Aurora’s act of filing
proofs of claim in the debtors’ bankruptcies did not
Nos. 10-3465 & 10-3466 15
give the bankruptcy judge authority to adjudicate
the debtors’ state-law claims. The debtors’ claims seek “to
augment the bankruptcy estate—the very type of claim
that . . . must be decided by an Article III court.” Id. at
2616 (citing N. Pipeline and Granfinanciera, S.A. v. Nordberg,
492 U.S. 33 (1989)). Non-Article III judges may hear
cases when the claim arises “as part of the process of
allowance and disallowance of claims,” id. (quoting
Katchen, 382 U.S. at 336), or when the claim becomes
“integral to the restructuring of the debtor-creditor rela-
tionship,” id. at 2617 (quoting Langenkamp, 498 U.S. at
44). Although there is some factual overlap between the
debtors’ claims and Aurora’s proofs of claim, the bank-
ruptcy judge “was required to and did make several
factual and legal determinations that were not ‘disposed
of in passing on objections’ to” Aurora’s proofs of claim.
Id. (quoting Katchen, 382 U.S. at 332 n.9). In granting
Aurora’s summary judgment motion, the bankruptcy
judge interpreted a Wisconsin state law to require proof
of actual damages as an essential element of the debtors’
claims and found that there was no genuine issue of
material fact as to the lack of actual damages. Nothing
about these decisions involved an adjudication of
Aurora’s proofs of claim and there is no “reason to
believe that the process of adjudicating [Aurora’s] proof[s]
of claim would necessarily resolve” the debtors’ claims.
Id. Stern reaffirmed that “Congress may not bypass
Article III simply because a proceeding may have some
bearing on a bankruptcy case; the question is whether
the action at issue stems from the bankruptcy itself or
would necessarily be resolved in the claims allowance
process.” Id. at 2618. The debtors’ action owes its
16 Nos. 10-3465 & 10-3466
existence to Wisconsin state law and will not necessarily
resolve in the claims allowance process. That the circum-
stances giving rise to the claims involved procedures in
the debtors’ bankruptcies is insufficient to bypass
Article III’s requirements. Stern v. Marshall makes plain
that the bankruptcy judge in our cases “exercised the
‘judicial Power of the United States’ in purporting to
resolve and enter final judgment on” the debtors’ Wis-
consin state-law claims. Id. at 2611. We thus hold that
the bankruptcy judge lacked authority under Article III
to enter final judgments on the disclosure claims.
The answer to the second set of questions is straight-
forward. The bankruptcy judge’s orders cannot be con-
sidered interlocutory under 28 U.S.C. § 158(a)(3), or
final decisions, judgments, orders, or decrees within
the meaning of 28 U.S.C. § 158(d)(1). The orders dis-
missed the debtors’ complaints and ended the litiga-
tion and § 158(d)(1) only gives us “jurisdiction of appeals
from all final decisions, judgments, orders, and decrees
entered under subsections (a) and (b) of” § 158, which
address the appellate jurisdiction of district courts and
appellate panels. For the bankruptcy judge’s orders to
function as proposed findings of fact or conclusions of
law under 28 U.S.C. § 157(c)(1), we would have to
hold that the debtors’ complaints were “not a core pro-
ceeding” but are “otherwise related to a case under title
11.” Id. As we just concluded, the debtors’ claims qualify
as core proceedings and therefore do not fit under
§ 157(c)(1). The direct appeal provision in 28 U.S.C.
§ 158(d)(2)(A) also does not authorize us to review on
direct appeal a bankruptcy judge’s proposed findings of
fact and conclusions of law.
Nos. 10-3465 & 10-3466 17
We did not ask for briefing on Aurora’s argument that
the debtors consented to the bankruptcy judge’s au-
thority by opposing Aurora’s motions for the district court
to withdraw its reference. Under 28 U.S.C. § 157(c)(2), a
district court may, “with the consent of all the parties . . .
refer a proceeding related to a case under title 11 to a
bankruptcy judge to hear and determine and to enter
appropriate orders and judgments, subject to review
under” 28 U.S.C. § 158. Aurora compares the debtors’
opposition to its motions to withdraw to cases where a
party’s course of conduct may result in consent to a
claim’s resolution by a non-Article III judge. See Roell
v. Withrow, 538 U.S. 580, 586-87 (2003) (holding that
consent to a magistrate judge’s authority does not
require compliance with specific procedures); Winters v.
Fru-Con Inc., 498 F.3d 734, 740 (7th Cir. 2007) (same);
Heft v. Moore, 351 F.3d 278, 281 (7th Cir. 2003) (same). Yet
given the debtors’ motions for abstention and remand,
we cannot find an implied consent to the bankruptcy
judge’s authority to resolve their claims. And even if we
could find an implied consent on the debtors’ part, we
could not find that all parties consented because Aurora
opposed the bankruptcy judge hearing the matter in
its motions to withdraw. So this case does not present
any question about a bankruptcy judge’s authority to
enter a final judgment when the parties have consented.
***
Given the answers to the first two questions, we cannot
escape the answer to the third question of whether we
had authority under 28 U.S.C. § 158(d)(2)(A), or any other
18 Nos. 10-3465 & 10-3466
provision, to grant direct appeal. Like the bankruptcy
judge in Stern v. Marshall, the bankruptcy judge here
lacked Article III authority to enter a final judgment on
the debtors’ state-law claims. Without a final judgment
we lack a statutory basis for appellate jurisdiction. Ac-
cordingly, we D ISMISS these appeals and R EMAND the
cases to the bankruptcy court. Unless and until an
Article III judge enters a final judgment, we have no
jurisdiction to review these matters.
12-30-11