      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0031P (6th Cir.)
               File Name: 00a0031p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                              ;
                               
In Re: SAMI YOUSIF,
                               
                  Debtor.
                               
________________________
                               
                                      No. 98-1805

                               
TODD M. HALBERT,                >
         Plaintiff-Appellant, 
                               
                               
                               
         v.
                               
                               
SAMI YOUSIF; SANA YOUSIF;
FLORENCE TANNERS,              
                               
      Defendants-Appellees. 
INCORPORATED,

                               
                              1

     Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
    Nos. 97-75047; 97-75048—Julian A. Cook, Jr.,
                    District Judge.
              Argued: October 29, 1999
         Decided and Filed: January 20, 2000
Before: WELLFORD, MOORE, and GILMAN, Circuit
                  Judges.


                           1
2    In re Yousif                               No. 98-1805      No. 98-1805                                   In re Yousif     19

                    _________________                            that enables a court of appeals to determine whether the
                                                                 district court’s order is a final and appealable order without
                        COUNSEL                                  having first to reach the merits of the appeal. Accordingly, I
                                                                 think that we should adopt “the prevailing view that courts of
ARGUED: Todd M. Halbert, Southfield, Michigan, for               appeals lack jurisdiction over appeals from orders of district
Appellant. John D. Hertzberg, Southfield, Michigan, for          courts remanding for significant further proceedings in
Appellees. ON BRIEF: Todd M. Halbert, Southfield,                bankruptcy courts.” Dicola v. American Steamship Owners
Michigan, for Appellant. John D. Hertzberg, Southfield,          Mut. Protection and Indem. Ass’n, Inc. (In re Prudential
Michigan, for Appellees.                                         Lines, Inc.), 59 F.3d 327, 331 (2d Cir. 1995) (quotation
                                                                 omitted); see also In re Lopez, 116 F.3d at 1192 (“[A]
  WELLFORD, J., delivered the opinion of the court, in           decision by the district court on appeal remanding the
which GILMAN, J., joined. MOORE, J. (pp. 13-19),                 bankruptcy court’s decision for further proceedings in the
delivered a separate concurring opinion.                         bankruptcy court is not final, and so is not appealable to this
                                                                 court, unless the further proceedings contemplated are of a
                    _________________                            purely ministerial character.”). In the present case, the district
                        OPINION                                  court affirmed much of the bankruptcy court’s decision, but
                    _________________                            it remanded the case to the bankruptcy court so that the
                                                                 bankruptcy court could make further factual findings to
   HARRY W. WELLFORD, Circuit Judge. Todd M.                     support its conclusion that Halbert violated the disclosure
Halbert, a Michigan attorney representing himself on this        requirements of § 329(a) and Bankruptcy Rule 2016(b).
appeal as he did in the district court, takes appeals from       Halbert, 225 B.R. at 354-58. Because the district court’s
denials of his applications for attorney fees with respect to    order remanding the case for further factual findings
two separate bankruptcy cases, one involving Sami and Sana       contemplates significant further proceedings in the
Yousif and the other involving the corporation controlled by     bankruptcy court, I do not believe that the district court’s
the Yousifs, Florence Tanners, Incorporated (“Tanners”). The     order should properly have qualified as a final order within
Yousifs and Tanners filed Chapter 11 bankruptcy cases and        the meaning of § 158(d), and thus the district court could not
were represented before and after these filings by Halbert.      properly certify that it had issued a final judgment of a
Ultimately, after protracted proceedings, the bankruptcy court   separate claim pursuant to Rule 54(b).
issued an opinion denying the requested fees based on what
the court perceived as a “systematic” pattern of impropriety       I concur in the judgment of the majority because I believe
on Halbert’s part, involving transfers of merchandise to the     that we do not have jurisdiction to review the district court’s
attorney from the debtors and allegations of preferential        order denying Halbert’s fee application in the Tanners’
payments and transfers.                                          bankruptcy case.

  Debtors claim that Halbert was not qualified under
bankruptcy law and rules to serve as counsel in the Chapter
11 proceedings, and that transfers of merchandise to Halbert
had occurred during the 90-day period before the filings and
constituted preferential transfers under § 547(b) of the Code.
In one opinion of the bankruptcy court, appealed to the
18   In re Yousif                                No. 98-1805      No. 98-1805                                 In re Yousif        3

from Tanners within the ninety-day preference period, Halbert     district court and essentially affirmed, at least in part, the
became ineligible to serve as its attorney, at least in the       former found that some antecedent debt was satisfied by the
absence of curative measures which did not occur here.”           transfer at issue, disqualifying Halbert. We have found that
Halbert v. Yousif, 225 B.R. 336, 344 (E.D. Mich. 1998). The       there is a serious jurisdictional question in these cases
district court, however, also vacated the bankruptcy court’s      consolidated for appeal and asked the parties to address the
determination that Halbert had violated the disclosure            issue at oral argument. See Millers Cove Energy Co. v.
requirements set forth in § 329(a) and Bankruptcy Rule            Moore (In re Millers Cove Energy Co.), 128 F.3d 449, 450
2016(b), remanding this issue to the bankruptcy court for         (6th Cir. 1997) (“‘Subject matter jurisdiction cannot be
further factual findings. Halbert, 225 B.R. at 354-58.            conferred on federal courts by consent of the parties. The
                                                                  existence of subject matter jurisdiction, moreover, is an issue
   If we were to decide on appeal that Halbert’s fee              that may be raised at any time, by any party, or even sua
application was properly denied on grounds that he was not a      sponte by the court itself.’”) (quoting Ford v. Hamilton Invs.,
disinterested person within the meaning of 11 U.S.C.              Inc., 29 F.3d 255, 257 (6th Cir. 1994)).
§ 327(a), then the issue involving Halbert’s compliance with
the disclosure requirements of § 329(a) and Bankruptcy Rule         We have jurisdiction to entertain orders and judgments that
2016(b), like the issue involving the fraudulent release in       effectively and finally dispose of all claims presented to the
Gardner, becomes non-dispositive. See, e.g., Halbert, 225         district court. This requirement is referred to as the final
B.R. at 356-57 (“Violations of the disclosure and                 judgment rule, embodied principally in 28 U.S.C. § 1291:
disinterestedness rules are independent of each other,            “The courts of appeals . . . shall have jurisdiction of appeals
although the remedies for each are similar.”). If, on the other   from all final decisions of the district courts. . . .” In the
hand, we were to decide to reverse the bankruptcy court’s         dispute before us, each bankruptcy case retained its separate
determination that Halbert was not a disinterested person,        identity, although the appeals from the separate orders or
then the issue involving the disclosure requirements of           judgments were consolidated for purposes of briefing and
§ 329(a) and Bankruptcy Rule 2016(b) would become a               argument; the cases of the Yousifs and Tanners were treated
“central, determinative issue underlying [the] dispute.” In re    separately by the bankruptcy court and subsequently by the
Gardner, 810 F.2d at 92. This example illustrates the             district court.
concerns that I have about the approach that we articulated in
Gardner: this approach may require the court of appeals to                        I. THE YOUSIF APPEAL
decide the merits of the issue that has been decided by the
district court before it can determine whether the issue that       The district court made the following findings pertinent to
has been remanded by the district court for further factual       the Yousifs’ bankruptcy appeal:
findings by the bankruptcy court is central to the outcome of
the case.                                                              Halbert submits that this Court should enter a summary
                                                                    judgment in his favor and against the Yousifs because the
  If we were to follow the approach that this court articulated     Bankruptcy Court did not cite any law and found no facts
in Gardner, then I believe that we would be forced to reach         upon which to support its denial of his request for
the merits of the district court’s decision before we could         attorney fees relating to services rendered in the Yousifs’
determine whether the district court’s order denying Halbert’s      bankruptcy. This Court agrees. All of his deficiencies,
fee application in the Tanners case is a final and appealable       which were the subject of the two opinions by the
order. I believe, however, that we should adopt an approach         Bankruptcy Court, relate to his conduct in the Tanners
                                                                    bankruptcy proceeding. In fact, there is no discussion or
4      In re Yousif                                     No. 98-1805     No. 98-1805                                  In re Yousif    17

    evaluation of Halbert’s compliance or noncompliance                 that the debtor had executed in favor of the insurance
    with his disclosure and disinterestedness duties in the             company was fraudulent. The bankruptcy court determined
    Yousif case.39                                                      that the insurance policy did not cover the accident, and it
                                                                        held that the release that the debtor had executed in favor of
      Therefore, the entry of a summary judgment by the                 the insurance company was not fraudulent. On appeal, the
    Bankruptcy Court in favor of the Yousifs is vacated.                district court affirmed the bankruptcy court’s determination
    Further, the issue of whether a summary judgment should             that the policy did not cover the accident, but it remanded the
    be entered on Halbert’s application for fees in the                 issue involving the release to the bankruptcy court for further
    Yousifs’ case is remanded for further consideration by              factual determinations.
    the Bankruptcy Court.
      39
                                                                           We determined that the district court’s order was a final and
         Although the Bankruptcy Court did recite the Rule 2016(b)      appealable order because the “legal issue concerning the
    disclosures made by Halbert in the Yousif case, In re Florence      interpretation of the insurance policy [was] the central,
    Tanners, 209 B.R. at 442, it did not make any factual findings or
    legal conclusions that are pertinent to those disclosures.          determinative issue underlying [the] dispute.” Id. at 92. Even
                                                                        though the district court’s “remand directed further factual
(emphasis added). This judgment by the district court                   determinations on a question of whether the release was
effectuating a remand to the bankruptcy court in the Yousifs’           fraudulent,” the court explained that this “question becomes
case is not a final judgment and is therefore not appealable;           academic if [the insurance company] were found not liable
the case was “vacated and remanded” to the bankruptcy court             under the insurance policy at issue.” Id. (emphasis in
for necessary factual findings and/or legal conclusions. See,           original). Thus, after our decision in Gardner, an appeal of a
e.g., Marlow v. Rollins Cotton Co., 146 F.3d 420, 422 (6th              district court order reviewing a bankruptcy court decision
Cir. 1998) (“A decision is final if it ‘ends the litigation on the      would appear to qualify as a final and appealable order so
merits and leaves nothing for the court to do but execute the           long as the district court does not “remand[ ] the case for a
judgment.’”) (quoting Catlin v. United States, 324 U.S. 229,            factual determination on an issue central to the case.” Id. at
233 (1945)).                                                            91 (emphasis in original).
                  II. THE TANNERS APPEAL                                   The court’s decision in Gardner is directly analogous to the
                                                                        present case. Here, the bankruptcy court denied Halbert’s fee
   We have similar reservations concerning jurisdiction over            application in the Tanners’ bankruptcy case because it
the appeal in the Tanners case. The district court summarized           determined that he had received undisclosed merchandise
the decision of the bankruptcy court and indicated its general          transfers during the ninety-day preference period and
approval of its actions. The district court concluded that the          therefore did not qualify as a disinterested person within the
bankruptcy court correctly determined that Halbert unlawfully           meaning of 11 U.S.C. § 327(a). The bankruptcy court also
withdrew funds from a $26,600 retainer fee on several                   determined that Halbert had violated the disclosure
occasions “until it was fully depleted without filing                   requirements set forth in 11 U.S.C. § 329(a) and Bankruptcy
supplemental disclosures or seeking Court approval” and                 Rule 2016(b). The district court affirmed the bankruptcy
thereby violated Bankruptcy Rule 2016(b) and 11 U.S.C.                  court’s denial of Halbert’s fee application on grounds that
§ 330. The district court held that the bankruptcy court                Halbert did not qualify as a disinterested person pursuant to
correctly determined that Halbert violated these and other              § 327(a), explaining that “[t]he Bankruptcy Court correctly
fiduciary obligations imposed on him by bankruptcy law and              determined that, as a result of receiving transfers of value
16    In re Yousif                                  No. 98-1805       No. 98-1805                                 In re Yousif       5

– the Bankruptcy Rule that incorporates Federal Rule of Civil         that it properly denied his fee applications as sanctions. The
Procedure 54(b) – applies to contested matters “unless the            district court also found sufficient evidence supporting the
court otherwise directs”). Thus, I concur in the judgment of          bankruptcy court’s finding that Halbert violated Bankruptcy
the majority and conclude that we do not have jurisdiction to         Rule 2014(a) by failing to disclose that he had received
hear Halbert’s appeal in the Tanners’ bankruptcy case because         merchandise transfers from Tanners within ninety days of the
the district court did not issue a certification pursuant to Rule     Yousifs’ and Tanners’ bankruptcy filings, thus disqualifying
54(b) as required by our precedents.                                  himself under 11 U.S.C. § 327(a) to serve as Tanners’
                                                                      counsel.
   This circuit’s current approach, which asks whether a
district court has complied with the Rule 54(b) certification           After approval of the bankruptcy court’s decision to deny
requirements when a district court has affirmed part of the           Halbert’s fees on a number of bases, the district court added
bankruptcy court’s decision and has remanded other parts of           this observation calling for the vacating of at least a part of
the case to the bankruptcy court for further proceedings, is          the bankruptcy court’s determination:
simply a way of letting the district court initially decide
whether the partial judgment is final. See Brotherton v.                The Court, after noting that “[c]learly, there was an
Cleveland, 173 F.3d 552, 559 (6th Cir. 1999) (“By its terms,            agreement that Tanners would pay for those services, but
Rule 54(b) applies only to final judgments.”); General                  Halbert did not disclose such an agreement,” concluded
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026-27               that Halbert’s failure to disclose this agreement violated
(6th Cir. 1994) (“The first step in certification, entry of partial     his disclosure duties under § 329(a) and Rule 2016(b).
final judgment, is satisfied where some decision made by the            Id.
district court ultimately disposes of one or more but fewer
than all of the claims or parties in a multi-claim/multi-party            Although it is undoubtedly plausible to deduce that a
action.”). Indeed, Rule 54(b) certification is only appropriate         fee agreement existed between Halbert and Tanners for
if the district court’s order affirming the bankruptcy court’s          these services in contemplation of bankruptcy, there is no
determination of a claim but remanding certain issues to the            direct information relating to any such agreement in any
bankruptcy court for further factual findings qualifies as a            of the material upon which the Bankruptcy Court relied.
final and appealable order.                                             Thus, there is no extrinsic evidence from which the
                                                                        Bankruptcy Court could have found that this agreement
   This circuit has addressed the underlying question of                existed, the method of payment, or the date on which it
finality on one occasion. See Breyfogle v. Grange Mut. Cas.             was mutually accepted by, and binding upon, the parties.
Co. (In re Gardner), 810 F.2d 87 (6th Cir. 1986). In Gardner,           Consequently, the applicable standards of review for the
this court determined that it had jurisdiction to hear a                Appellees’ dispositive motion preclude the Bankruptcy
bankruptcy appeal even though a district court had reversed             court from having found sufficient material facts from
and remanded part of the bankruptcy court’s decision. The               which the existence and terms of the parties’ agreement
plaintiffs in Gardner sued a debtor and his insurance                   could be determined.
company for the personal injuries that they sustained in an
automobile accident involving the debtor. The plaintiffs                  Strict compliance with the directive to draw all
sought damages from the debtor’s insurance company on                   reasonable inferences in favor of Halbert should have
grounds that the insurance policy at issue covered the                  resulted in the Bankruptcy Court making no finding
automobile accident. The plaintiffs also alleged that a release         about such an agreement. Apart from whether this
                                                                        directive required the assumption that Halbert agreed to
6      In re Yousif                                No. 98-1805    No. 98-1805                                        In re Yousif      15

    work on the bankruptcy pro bono, about which this Court       described as “full blown federal lawsuits within the larger
    expresses no opinion, the Bankruptcy Court improperly         bankruptcy case,” and are initiated when a party files a
    assumed that any such agreement fell within the bounds        complaint with the bankruptcy court. Section 1120(A)(1)
    of § 329(a) and Rule 2016(b). This conclusion was             Comm. of Unsecured Creditors v. Interfirst Bank Dallas,
    reached even though Halbert presented uncontested             N.A.(In re Wood and Locker, Inc.), 868 F.2d 139, 142 (5th
    extrinsic evidence which indicated that his only fee          Cir. 1989) (quotation omitted). Rule 54(b) applies to
    agreement with Tanners was achieved on September 1,           adversary proceedings that are brought within the context of
    1993, more than one year before its petition was filed.       a larger bankruptcy proceeding through Bankruptcy Rule
    Indeed, Halbert contends on appeal that this fee              7054, which incorporates Rule 54(b). In re Millers Cove
    agreement, which provided for an hourly fee of $165, is       Energy Co., 128 F.3d at 451.
    the only one relating to the bankruptcy, a claim which is
    undisputed by the Appellees.                                     In the Tanners’ bankruptcy case, Halbert filed an
                                                                  application with the bankruptcy court for the payment of
       While the Court expresses no opinion as to whether         attorney fees, and Tanners responded by filing an objection to
    Halbert was under a duty to disclose this fee agreement,      his fee application. I do not believe that these proceedings
    it is apparent that the Bankruptcy Court drew inferences      qualify as adversary proceedings pursuant to Bankruptcy Rule
    against him based on an incomplete understanding of the       7001,3 see, e.g., In re Chambers, 140 B.R. 233, 239 (N.D. Ill.
    facts and the parties’ positions on this issue. The           1992) (“The court agrees with the bankruptcy court’s finding
    Bankruptcy Court also failed to set forth on the record       that the Rule 7001 does not govern requests for attorneys
    the basis for this alleged violation while at the same time   fees.”); 10 LAWRENCE P. KING, COLLIER ON BANKRUPTCY
    being unable to establish the date on which the alleged       ¶ 9014.01 (15th ed. 1998) (explaining that “contested
    agreement was entered. Cf. In the Matter of Prudhomme,        applications for the payment of professional fees” are
    43 F.3d 1000, 1002-03 (5th Cir. 1995) (court can order        “contested matters,” which “do not qualify as adversary
    disgorgement of fee paid more than one year before filing     proceedings because they are not defined as such by Rule
    of petition because one year limitation period in § 329(a)    7001”); instead, I believe that this case is more properly
    is rebuttable presumption that any compensation paid          characterized as a contested matter. See FED. R. BANKR. P.
    before pre-petition year period is not in contemplation of    9014.
    bankruptcy and consequently § 329(a) does “not provide
    a limitations period beyond which the court cannot              Nevertheless, I believe that consistent with our precedents
    reach.”). Therefore, the findings and conclusions of the      the district court must issue a certification pursuant to Rule
    Bankruptcy Court on this issue must be vacated.               54(b) before Halbert may appeal the district court’s order
                                                                  affirming the bankruptcy court’s denial of his fee application
      ....                                                        because the Bankruptcy Rules state that the Rule 54(b)
                                                                  certification requirements apply to contested matters. See
    [T]he Bankruptcy Court gives no indication of having          FED. R. BANKR. P. 9014 (stating that Bankruptcy Rule 7054
    evaluated his argument that the November 19, 1994
    merchandise transfer, as well as other merchandise
    deliveries, could be applied exclusively to non-                  3
                                                                        I do not agree with the majority’s decision to “view this appeal as
    bankruptcy related services that were provided before the     an adversary proceeding to determine Halbert’s eligibility for attorney’s
    petitions were filed. Moreover, the Bankruptcy Court          fees and liability for sanctions and apply Federal Rules of Bankruptcy
                                                                  Procedure 7054 and 7001(1).”
14       In re Yousif                                    No. 98-1805        No. 98-1805                                    In re Yousif        7

appealable to this court, unless the further proceedings                      does not appear to have addressed Tanners’ argument
contemplated are of a purely ministerial character.”), cert.                  that all of the merchandise transfers to Halbert were in
denied, 522 U.S. 1014 (1997), with Official Comm. of                          payment of pre-1994 fee obligations.
Unsecured Creditors of Life Serv. Sys., Inc. v. Westmoreland
County MH/MR, 183 F.3d 273 (3rd Cir. 1999) (holding that                        As a consequence, it appears that the Bankruptcy Court
an appeal involving a district court order remanding part of a                did not evaluate this issue in a light most favorable to
case to the bankruptcy court for further proceedings is final                 Halbert. Hence, its findings and conclusions with regard
and appealable if the policy considerations underlying the                    to this matter must be vacated.
bankruptcy proceedings would be furthered by an immediate
appeal).                                                                        ....

   This circuit has adopted a unique approach for determining                   The Bankruptcy Court held that Halbert violated his
whether an appeal from a judgment by a district court                         disclosure duties under Rule 2016(b) by not revealing the
remanding a case to the bankruptcy court for further                          receipt of six post-confirmation fees from Tanners,
proceedings is a final and appealable order. See In re Millers                totaling $51,868.92.
Cove Energy Co., 128 F.3d at 450-52; Seor, Inc. v. Textron
Oil Corp. (In re Frederick Petroleum Corp.), 912 F.2d at 853-                   ....
54. In an attempt to “establish[ ] a much-needed, bright-line
test for determining finality [and] providing certainty for                      . . . [T]he record on this issue is insufficient and, thus,
litigants,” we have held that a bankruptcy appeal is not final                it precludes any meaningful judicial review of the
unless the district court complies with the certification                     contested issue.
requirement of Federal Rule of Civil Procedure 54(b). In re                     ....
Frederick Petroleum Corp., 912 F.2d 850, 853-54 (6th Cir.
1990); see also In re Millers Cove Energy Co., 128 F.3d at                      For these reasons, the findings and conclusions of the
451-52. As the court in Millers Cove explained, “In the                       Bankruptcy Court on this issue are vacated.
absence of certification under Rule 54(b) as to the finality of
a partial disposition by the district court in a bankruptcy                 (footnotes omitted). Despite vacating the bankruptcy court’s
proceeding, any partial disposition is deemed non-final for                 opinion and judgment in several particulars as above-related,
purposes of appeal.” Id. at 452.                                            the district court proceeded to find that “the Bankruptcy
                                                                            Court’s denial of Halbert’s fee application in the Tanners’
  The court in Millers Cove, however, was careful to point                  case was fully warranted.”
out that the bankruptcy dispute at issue in the case was
brought as 2an adversary proceeding pursuant to Bankruptcy                    The judgment, however, concluded:
Rule 7001. Id. at 451-52. Adversary proceedings have been
                                                                              The denial by the Bankruptcy Court of Halbert’s fee
                                                                              application in the Tanners’ bankruptcy case is affirmed,
     2
      Bankruptcy Rule 7001 sets forth those proceedings that qualify as       although certain findings of fact and conclusions of law
adversary proceedings: An adversary proceeding includes “a proceeding         upon which the holding by the Bankruptcy Court was
to recover money or property, other than a proceeding to compel the           based are vacated and remanded to the Bankruptcy
debtor to deliver property to the trustee, or a proceeding under § 554(b)     Court.
or § 725 of the Code, Rule 2017, or Rule 6002.”
8      In re Yousif                              No. 98-1805      No. 98-1805                                           In re Yousif      13

(emphasis added). Under the circumstances, although the                                _____________________
district court has noted affirmance of the bankruptcy court in
the Tanners case in a number of aspects, we confess that we                               CONCURRENCE
cannot determine, due to what we perceive are, at best,                                _____________________
ambiguities in the lengthy decision of the district court,
whether there has been rendered a final judgment within the          KAREN NELSON MOORE, Circuit Judge, concurring. I
meaning of § 1291 in the Tanners case. “Certain findings . . .    join Part I of the majority’s opinion because I agree that the
upon which the holding by the Bankruptcy Court was based”         district court’s order remanding Halbert’s fee application in
were “vacated and remanded,” and are relevant to the issues       the Yousifs’ bankruptcy case is not a final and appealable
presented in this appeal. “If . . . the district court order      order. I concur in the judgment of the majority with respect
remands the case for a factual determination on an issue          to Part II of its opinion, but I write separately to clarify this
central to the case, the district court order is determined not   circuit’s approach for determining “the finality of district
to be appealable because the case cannot be resolved properly     court orders remanding a case for further proceedings in
until the appropriate fact-finder, the bankruptcy court, makes    bankruptcy court.” Millers Cove Energy Co. v. Moore (In re
necessary factual findings.” Breyfogle v. Grange Mutual           Millers1 Cove Energy Co.), 128 F.3d 449, 451 (6th Cir.
Casualty (In re Gardner), 810 F.2d 87, 91-92 (6th Cir. 1987).     1997).
Because the bankruptcy court serves as an “adjunct” to the
district court, “we view all the proceedings in this action,        We have jurisdiction to review only the “final decisions,
whether in the Bankruptcy Court or the District Court as one      judgments, orders, and decrees” of a district court when a
proceeding in bankruptcy.” Seon, Inc. v. Textron Oil Corp.        district court has acted in an appellate capacity and has
(In re Frederick Petroleum Corp.), 912 F.2d 850, 853 (6th         reviewed a bankruptcy court decision. 28 U.S.C. § 158(d);
Cir. 1990). Thus, we view this appeal as an adversary             see also In re Millers Cove Energy Co., 128 F.3d at 451.
proceeding to determine Halbert’s eligibility for attorney’s      Courts of appeals, however, have had a difficult time agreeing
fees and liability for sanctions and apply Federal Rules of       on exactly what constitutes a final decision when reviewing
Bankruptcy Procedure 7054 and 7001(1) and Fed. R. Civ. P.         an appeal of a district court order reviewing a bankruptcy
54(6). See, id. at 853-54; Millers Cove Energy Co. v. Moore       court decision – particularly when a district court has affirmed
(In re Millers Cove Energy Co.), 128 F.3d 449 (6th Cir.           part of the bankruptcy court’s decision and has remanded
1997). Rule 54(b) provides that:                                  other parts of the case to the bankruptcy court for further
                                                                  proceedings. Compare In re Lopez, 116 F.3d 1191, 1192 (7th
      (b) Judgment Upon Multiple Claims or Involving              Cir.) (holding that “a decision by the district court on appeal
    Multiple Parties. When more than one claim for relief         remanding the bankruptcy court’s decision for further
    is presented in an action, whether as a claim,                proceedings in the bankruptcy court is not final, and so is not
    counterclaim, cross-claim, or third-party claim, or when
    multiple parties are involved, the court may direct the
    entry of a final judgment as to one or more but fewer             1
    than all of the claims or parties only upon an express              I write separately only with respect to Part II of the majority’s
    determination that there is no just reason for delay and      opinion, which addresses the part of the district court’s order that affirms
                                                                  the bankruptcy court’s denial of “Halbert’s fee application in the Tanners’
    upon an express direction for the entry of judgment. In       bankruptcy case,” and vacates and remands to the bankruptcy court
    the absence of such determination and direction, any          “certain findings of fact and conclusions of law upon which the holding
    order or other form of decision, however designated,          by the Bankruptcy Court was based.” Halbert v. Yousif, 225 B.R. 336,
                                                                  360 (E.D. Mich. 1998).
12    In re Yousif                                 No. 98-1805     No. 98-1805                                    In re Yousif        9

     been met; first, the district court must “clearly               which adjudicates fewer than all the claims or other
     evidence[] its intent that the opinion . . . represent[ed]      rights and liabilities of fewer than all the parties shall not
     the final decision in the case;” second, the judgment           terminate the action as to any of the claims or parties, and
     must have been “properly recorded on the clerk’s                the order or other form of decision is subject to revision
     docket;” and third, “the appellee from the district court       at any time before the entry of judgment adjudicating all
     [must not have] objected to perfecting the appeal from          the claims and the rights and liabilities of all the parties.
     that order.”
                                                                   See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438
Whittington v. Milby, 928 F.2d 188, 192 (6th Cir.), cert.          (1956) (“[Rule 54(b)] does not supersede any statute
denied, 512 U.S. 883 (1991) (quoting Bankers Trust v. Mallis,      controlling appellate jurisdiction. It scrupulously recognizes
435 U.S. 381, 387 (1978)).                                         the statutory requirement of a ‘final decision’ under § 1291 as
                                                                   a basic requirement for an appeal to the court of appeals.”).
  In this case, a remand for entry of a separate judgment
while retaining jurisdiction over the appeal would serve no           The district court has made no determination that “there is
purpose if the judgment was not a final appealable order.          no just reason for delay” on a final judgment entered as “to
Likewise, even if the district court had entered a separate        one or more but fewer than all the claims or parties.” No
document, we still would need to inquire into its finality. See    Rule 54(b) certification was issued or requested. “In the
Bankers Trust, 435 U.S. at 385-86 n.6 (“Even if a separate         absence of certification under Rule 54(b) as to the finality of
judgment is filed, the courts of appeals must still determine      a partial disposition by the district court in a bankruptcy
whether the district court intended the judgment to represent      proceeding, any partial disposition is deemed non-final for
the final decision in the case.”); see also Green v. Nevers, No.   purposes of appeal.” In re Millers Cove Energy Co., 128 F.3d
98-1695, 1999 WL 1044239 *n.2 (6th Cir. Nov. 19, 1999).            at 452.
   Accordingly, we find that we clearly have no jurisdiction in      We therefore lack subject matter jurisdiction under 28
the Yousifs’ appeal. We must also decline jurisdiction in the      U.S.C. § 158(d) and must dismiss the appeal. See id.
attempted Tanners’ appeal for the reasons indicated because
it is premature.                                                     We pass to another matter of concern on the issue of
                                                                   jurisdiction--Halbert’s notice of appeal, which is set out
                                                                   below:
10     In re Yousif                             No. 98-1805    No. 98-1805                                   In re Yousif     11

           UNITED STATES DISTRICT COURT                        The notice of appeal may be insufficient because, among
           EASTERN DISTRICT OF MICHIGAN                        other things, it does not name the court to which appeal is
                SOUTHERN DIVISION                              taken. See, however, Dillon v. United States, 184 F.3d 556
                                                               (6th Cir. 1999) (en banc) (holding that “where only one
 TODD M. HALBERT,                CONSOLIDATED                  avenue of appeal exists, [Fed. R. App. P.] 3(c)(1)(C) is
                                 APPEALS                       satisfied even if the notice of appeal does not name the
                                                               appellate court”). The notice makes no reference to a separate
        Appellant,               Case Nos. 97-CV-75047         judgment entry that appears in the joint appendix in the
                                           97-CV-75048         Tanners case. The only reference is to the lengthy “Order”
                                                               from which we have cited a number of excerpts. The “Order”
 v.                            Hon. Julian Abele Cook, Jr.     is really an opinion dealing with two separate cases, one of
                                                               which we have found to be clearly not appealable.
 SAMI YOUSIF, SANA YOUSIF, and
 FLORENCE TANNERS, INC.,                                         Furthermore, the record does not reflect that there was a
                                                               separate judgment entry, pursuant to Fed. R. Civ. P. 58, which
        Appellees.                                             mandates entry of a separate document. This requirement
                                                               may be waived, however, under certain circumstances. See
 ____________________________________/                         Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). In the
                                                               present case, the district court entered its order on the docket
                      NOTICE OF APPEAL                         sheet, and the defendants did not object to perfecting the
                                                               appeal from that order. However, because it remanded the
    Todd M. Halbert (“Appellant”) appeals as a matter of       Yousifs case in its entirety and the Tanners case in part for
 right from that certain Order entered by the District Court   further findings, it is certainly arguable that the district court
 on July 2, 1998.                                              did not evidence clear intent that the opinion be a final
   The parties to the Order appealed from and the names        decision in the case and thus did not meet the requirements
 of their respective attorneys are as follows:                 for waiver.

   Sami Yousif and Sana Yousif: C. William Garratt,               In certain cases “although the absence of a separate
 Esq.                                                          document does not foreclose appellate review, . . . ‘the
                                                               question raised by [the] appeal can be more fully considered
      Florence Tanners, Inc.: C. William Garratt, Esq.         if the decision below is made explicit in a judgment.’”
                                                               Beukema’s Petroleum Co. v. Admiral Petroleum Co., 613
                      ___________________________              F.2d 626, 628-29 (6th Cir. 1979) (holding that Bankers Trust
                      TODD M. HALBERT (P33488)                 applied to appeals from preliminary injunctions) (quoting
                      Counsel for Appellant                    Turner v. Air Transport Lodge 1894, 585 F.2d 1180 (2d Cir.),
                      24359 Northwestern Hwy., #250            cert. denied, 442 U.S. 919 (1978)).
                      Southfield, MI 48075
                      (243) 356-6204                             Following Bankers Trust, this court held that

 DATED: July 10, 1998                                              [T]he parties to an appeal may waive the separate
                                                                   judgment requirement where three conditions have
