In re Grabill Corp.

On consideration of the petition for rehearing and suggestion for rehearing en banc filed in the above-entitled cause, 967 F.2d 1152, on July 27, 1992 by petitioner-appellee, a vote of the active members of the court was requested, and a majority of the active members of the court have voted to deny a rehearing en banc.

Circuit Judges CUDAHY, POSNER and EASTERBROOK voted to grant rehearing en banc.

COFFEY, Circuit Judge,

concurring in the denial of rehearing en banc.

The whole scheme of bankruptcy administration rests on a swift, efficient resolution of claims in a speedy trial in order that the debtor’s business might continue or at least attempt to be salvaged in a timely manner while protecting the interests of the creditors. Allowing costly, time consuming, adjournment prone, cumbersome jury trials in the bankruptcy process defeats the very purpose of a speedy, inexpensive resolution of bankruptcy cases. See Fed.R.Bankr.P. 1001 (“These rules shall be construed to secure the just, speedy, and inexpensive determination of every case and proceeding.”) (Emphasis added).1 The delay incumbent in jury trial proceedings (from docketing, voir dire, challenges from the beginning to end, depositions, pre-trial conferences, expert witnesses, adjournments, jury instructions, and jury deliberations) necessitates keeping the number of jury trials in bankruptcy to an absolute minimum.2 In fact, jury trials are the very antithesis of the speedy bankruptcy procedure. This Circuit, along with the Sixth, Eighth, and Tenth Circuits, have properly concluded that bankruptcy judges *1127are unauthorized to conduct jury trials. See In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169 (6th Cir.1992); In re Kaiser Steel Corp., 911 F.2d 380 (10th Cir.1990); In re United Missouri Bank, 901 F.2d 1449 (8th Cir.1990).

We as federal judges possess only that authority entrusted to us under the Constitution and subsequent Congressional enactments. Because bankruptcy courts receive their jurisdiction and authority from Congress, it is not for us, an appellate court, to expand upon what Congress has delineated. Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973). Contrary to the suggestion of my colleagues, Judges Posner and Easter-brook, we need not infer nor attempt to read in jurisdiction that Congress chose not to confer, rather we must recognize and always be cognizant of the fact that we have only that amount of power, authority and jurisdiction that Congress has seen fit to grant. Id.; In re Kaiser, 911 F.2d at 391 (“finding [that bankruptcy judges may hold jury trials] as an implied power [is] contrary to the doctrine of statutory interpretation that implied powers ‘must be practically indispensable and essential in order to execute the power actually conferred’ ”) (quoting In re United Missouri Bank, 901 F.2d at 1456 (emphasis added)). Certainly it cannot be said that it is either essential or indispensable that bankruptcy judges conduct jury trials. The district courts are — and I am quite sure in the future will remain — quite capable of handling these infrequent jury trials.

In the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress overhauled the bankruptcy process and failed to express an intention to empower bankruptcy judges to conduct jury trials. Moreover, because the United States Supreme Court has not seen fit to specifically reach this issue, Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 65, 109 S.Ct. 2782, 2803, 106 L.Ed.2d 26 (1989), In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.), cert. granted, 497 U.S. 1023, 110 S.Ct. 3269, 111 L.Ed.2d 779 vacated and remanded on other grounds, — U.S. -, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991), we too should refrain from implying what Congress never intended.

One of my colleagues suggests that “[e]veryone believes that bankruptcy judges appointed under Article III could hold jury trials.” Easterbrook dissent at 7. The bankruptcy code itself rejects this contention, “[e]ach bankruptcy judge, as a judicial officer of the district court, may exercise the authority conferred under this chapter_” 28 U.S.C. § 151 (emphasis added). Because Congress has not conferred the power to conduct jury trials on bankruptcy judges, all discussion regarding the qualifications of bankruptcy judges (comparing them to magistrate judges) is misleading. Magistrates have been expressly authorized by Congress to conduct jury trials within specific limits while bankruptcy judges are without such jurisdiction. See 28 U.S.C. § 636(c)(1) (authorizing magistrates to conduct civil trials when designated by the district court and consent is obtained from each of the parties).

Judge Posner maintains that “the panel majority has made a serious mistake” by refusing to expand the statutorily authorized powers of bankruptcy judges. Pos-ner dissent at 5. I might suggest that my dissenting colleagues reread what they themselves have written on previous occasions when faced with similar problems, namely, a specific lack of authority, and have written that Congress itself should resolve such questions. See, e.g., Board of Trade v. S.E.C., 923 F.2d 1270, 1277 (7th Cir.1991) (Posner, J.) (“[t]his is a question for Congress to decide”); International Union, UAW v. Johnson Controls, Inc., 886 F.2d 871, 910, 915 (7th Cir.1989) (Easterbrook, J., dissenting) (suggesting that Congress is the appropriate forum for the dispute).

The panel majority has properly determined that bankruptcy judges may not conduct jury trials. The full Court need not reexamine this question, rather if a problem really exists, it is for the United States Congress to resolve after the full panoply of hearings, discussion, debate and action in order that all interested and well-versed advocates and/or objectors may be allowed *1128to participate in this questionable expansion of the bankruptcy process.

. In the Seventh Circuit alone, from 1987 to 1991, 338,230 bankruptcy petitions were filed resulting in 22,255 adversary proceedings. See Memorandum re Hearings, Aug. 17-Sept. 11, 1992 (detailing one bankruptcy judge’s handling of 107 hearings in 18 days). Evidence that jury trials would bog down a system designed for quick resolution of matters may be found from examining the civil jury trial backlog in the district courts. The median time in the districts of the Seventh Circuit ranged between 5 and 25 months from joinder of issue to trial,"with 10% of the cases taking more than 36 months to reach trial. Administrative Office of the Federal Courts, Statistics Division (1992); see also Civil Cases have repeated delays, Milw. Sentinel, Sept. 21, 1992 at 5A (discussing backlog of civil cases due to increasing number of criminal cases).

. Indeed, only 6 jury trials have resulted from the 241,559 bankruptcy filings in the Northern District of Illinois since 1985 (4 were held in district court and 2 in bankruptcy court). Office of the Clerk, Bankruptcy Court for the N. Dist. of Ill. This nominal figure underscores the lack of need for jury trials in bankruptcy.