IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50068
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IN RE EL PASO ELECTRIC COMPANY,
Petitioner.
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Petition for Writ of Mandamus from the United States
District Court for the Western District of Texas
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February 27, 1996
Before JOLLY, DeMOSS, and STEWART, Circuit Judges:
PER CURIAM:
The petitioner, El Paso Electric Company ("El Paso"), a debtor
in bankruptcy, seeks a writ of mandamus directing the United States
District Court for the Western District of Texas, Austin Division,
Nowlin, J. (the "district court"), to withdraw the reference to
bankruptcy court of El Paso's action against Central and Southwest
Corporation ("CSW") and CSW's action seeking declaratory judgment.1
Those actions arise out of an unconsummated Agreement and Plan of
Merger between CSW and El Paso (the "Agreement") that provided for
CSW's acquisition of El Paso as a wholly-owned subsidiary. The
Agreement formed the foundation of El Paso's Third Amended Plan of
Reorganization, which was confirmed on December 8, 1993, by the
1
At our request, CSW has filed in this court a response to El
Paso's petition.
United States Bankruptcy Court for the Western District of Texas,
Austin Division (the "Austin Bankruptcy Court"). On June 9, 1995,
CSW sent El Paso a letter alleging breach by El Paso and
terminating the Agreement. Both parties filed suit.
On June 9, 1995, El Paso filed suit in state district court in
El Paso County, asserting various state law tort and contract
claims against CSW arising from the failure to successfully
complete the merger (the "Merger Agreement Action"). El Paso
timely requested a jury trial. On June 15, 1995, CSW filed its
Complaint for Termination Fees and for Declaratory Judgment in the
district court to recover termination fees as administrative
expenses under the Agreement (the "Administrative Expense Action").
On the same date, CSW removed the Merger Agreement Action from
state court to the district court. Pursuant to 28 U.S.C. § 157(a)
and a standing order of the district court, the district court
automatically referred both proceedings to the United States
District Court for the Western District of Texas, El Paso Division.
By agreed order, both actions were subsequently transferred to the
Austin Bankruptcy Court.
A flurry of motions, not directly relevant here, followed in
the Austin Bankruptcy Court. On October, 19, 1995, El Paso filed
two motions in the district court requesting the withdrawal of the
reference to the Austin Bankruptcy Court of the Merger Agreement
Action and the Administrative Expense Action. The district court
denied the motions on November 15, 1995, reasoning that both
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actions constituted "core proceedings" under 28 U.S.C. § 157
(b)(2)(C) and thus fell within the jurisdiction of the Austin
Bankruptcy Court.
On November 27, 1995, El Paso filed with the district court
two separate motions requesting the court to reconsider its
November 15th orders denying the withdrawal of the reference. By
orders dated December 11, 1995, the district court denied El Paso's
motions to reconsider.
El Paso apparently has not sought the district court's
certification for interlocutory appeal under 28 U.S.C. § 1292(b) of
the "controlling question[s] of law" raised in its motions for
withdrawal and for reconsideration. Instead, on January 29, 1996,
El Paso filed this petition for mandamus, asserting that the
district court's orders refusing to withdraw the reference of the
cases to the bankruptcy court would deny El Paso its right to a
trial by jury. We deny the writ.
I
A writ of mandamus issues only where the district court has
committed a "clear abuse of discretion" or engaged in "conduct
amounting to 'usurpation of power.'" Mallard v. United States
District Court, 490 U.S. 296, 309 (1989). To be entitled to a
writ, "petitioners must show that they lack adequate alternative
means to obtain the relief they seek" and that their "right to
issuance of the writ is 'clear and indisputable.'" Id.
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Prior to the Supreme Court's recent opinion in Connecticut
National Bank v. Germain, 112 S.Ct. 1146 (1992), we had held that
we lacked jurisdiction under 28 U.S.C. § 158(d) to review district
court orders as to bankruptcy matters when the order was not final.
Hester v. NCNB Tex. Nat'l Bank, 899 F.2d 361, 365 (5th Cir. 1990)
(finding lack of jurisdiction over appeal from district court order
denying stay). Neither could we review such orders of the district
court under 28 U.S.C. § 1292, governing interlocutory appeals. Id.
Jurisdiction was lacking under § 1292, we had held, "because the
bankruptcy scheme embedded in 28 U.S.C. § 158 clearly supersedes 28
U.S.C. § 1291, and, by inference, also supersedes section 1292."
Id. Because no review was available, we viewed "mandamus [as] the
only remedy available to Debtors seeking relief from [district
court orders.]" Id. See also In re Jensen, 946 F.2d 369 (5th Cir.
1991) ("[W]e are persuaded that a writ of mandamus is an
appropriate remedy to protect the valued right of trial by jury and
to avoid costly, multiple trials.").
Since our opinion in Hester and In re Jensen, the United
States Supreme Court has considered the jurisdiction of appeals
courts to hear appeals of interlocutory orders issued by district
courts sitting as appellate courts in bankruptcy matters. In
Connecticut National Bank v. Germain, 112 S.Ct. 1146 (1992), the
Supreme Court made it clear that § 1292 allows for circuit court
review of an interlocutory order of a district court in a
bankruptcy proceeding. The Court specifically found that § 158,
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which gives the courts of appeals jurisdiction over appeals from
all final orders of district courts sitting as appellate courts in
bankruptcy, "is silent as to review of interlocutory orders." Id.
at 1150. Because of this silence, the Court concluded, "[t]here is
no reason to infer from either § 1292 or § 158(d) that Congress
meant to limit appellate review of interlocutory orders in
bankruptcy proceedings." Id.
Germain overrules our prior precedent as to interlocutory
appeals. In the light of this intervening Supreme Court precedent,
we conclude that El Paso could have sought certification from the
district court of its order denying withdrawal of the reference.
Consequently, we conclude that El Paso does not lack an "adequate
alternative means to obtain the relief they seek" and is therefore
not entitled to the extraordinary remedy of mandamus. Mallard v.
United States District Court, 490 U.S. 296, 309 (1989).
Furthermore, we are not convinced, with respect to the merits of
its claim, that El Paso has demonstrated that their right to
mandamus relief is clear and indisputable. Although we expressly
do not pass on the merits of the underlying claim, on the basis of
the record before us, we are unable to conclude that the district
court erred in refusing to withdraw the reference. Accordingly,
the petition for writ of mandamus is
D E N I E D.
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