
USCA1 Opinion

	




          February 5, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          Nos. 92-1780               92-1781               92-1782                                              HAROLD F. CHORNEY,                                      Appellant,                                          v.                                    EASTLAND BANK,                                      Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Harold F. Chorney on brief pro se.               _________________               Michael A. Silverstein, Sheryl  Serreze, Michelle A. Ruberto               ______________________  _______________  ___________________          and  Hinckley,  Allen, Snyder  & Comen  on  Memorandum of  Law in               _________________________________          Support of Motion for Summary Affirmance for appellee.                                  __________________                                 __________________                  Per  Curiam.   We have  consolidated three  appeals from                 ___________            adverse orders in a bankruptcy proceeding in which the debtor            is  Cumberland  Investment  Corporation.   Appellant,  Harold            Chorney, was  a principal of the debtor.   Appellee, Eastland            Bank ("Eastland") is the principal secured creditor.                  One appeal  challenges the  bankruptcy court's  order of            January  17, 1991, denying Chorney's  demand for a  jury in a            civil  contempt  action.    Another   appeal  challenges  the            bankruptcy court's July 3, 1991 denial of Chorney's motion to            hold the examiner in  contempt.  The third  appeal challenges            the bankruptcy  judge's August  14, 1991 denial  of Chorney's            motion that the judge disqualify himself from the case.                  The district court granted  leave to appeal pursuant to            its  discretion to  do  so  under 28  U.S.C.     158(a).   It            affirmed all  three bankruptcy court orders,  and this appeal            followed.                  Although the  parties have not raised  the issue, "this            court  has  an  obligation to  inquire  sua  sponte  into its            subject matter jurisdiction."  In re Recticel Foam Corp., 859                                           _________________________            F.2d 1000,  1002 (1st  Cir. 1988).   Finding no  jurisdiction            over these interlocutory appeals, we must dismiss.                   Appeal  to  this   court  of  interlocutory  orders   in            bankruptcy  is not permitted by   158, which grants to courts            of  appeals   jurisdiction  only  over   appeals  from  final                                                                    _____            decisions, orders, and decrees.   28 U.S.C.   158(d);  see In                                                                   ___ __            re American  Colonial Broadcasting  Corp., 758 F.2d  794, 800            _________________________________________            (1st  Cir. 1985).    Because of  the flexible  interpretation            accorded "finality"  in bankruptcy cases, this  court has not            ruled out the possibility  that a unique case might  arise in            which a  district court's  appellate decision under    158(a)            might be final for purposes of  appeal to this court under               158(d), despite  the interlocutory  nature of  the underlying            bankruptcy order.   See In  re G.S.F. Corp.,  938 F.2d  1467,                                ___ ___________________            1473 (1st  Cir. 1991).  But this is not such an unusual case.                 The orders challenged  here involved interim  procedural            steps affecting only the  manner in which further proceedings            on  the merits would be conducted.  They did not conclusively            determine  a "separable  dispute over  a creditor's  claim or            priority,"  nor   leave  only   "ministerial"  tasks   to  be            accomplished in any  separable judicial  unit or  proceeding.            In re Saco Local Dev. Corp.,  711 F.2d 441, 445-46 (1st  Cir.            ___________________________            1983);  see also Tringali v. Hathaway Mach. Co., 796 F.2d 553                    ________ ________    __________________            (1st  Cir. 1986).    Nor  did  the  district  court's  orders            terminate the federal courts' involvement in the entire case,            or  any significant aspect  of it.   In re  G.S.F. Corp., 938                                                 ___________________            F.2d at 1473.   And, based on the partial  record supplied by            appellant,   these  orders  are  not  appealable  "collateral            orders" under  the doctrine announced in  Cohen v. Beneficial                                                      _____    __________            Industrial Loan Corp.,  337 U.S.  541 (1949).   There do  not            _____________________            appear  to  be  any  "important and  unsettled  questions  of                                         -3-            controlling   law",   nor   are   the   orders   "effectively            unreviewable" on appeal from a final judgment.  United States                                                            _____________            v. Sorren, 605  F.2d 1211, 1213 (1st Cir. 1979);  see also In               ______                                         ________ __            re M.S.V., Inc., 892 F.2d 5, 7 (1st Cir. 1989)  (quoting from            _______________            Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).               _________________    _______                 The Supreme  Court recently  concluded that 28  U.S.C.              158  is  not  the exclusive  provision  governing  bankruptcy            appellate  jurisdiction.    In  Connecticut   Nat'l  Bank  v.                                            _________________________            Germain, 503 U.S. ___, 112 S. Ct. 1146 (1992), the Court held            _______            that following appeal from an interlocutory bankruptcy  order            to the  district court under    158(a), further discretionary            review might then be sought in the court of  appeals under 28            U.S.C.    1292(b).  However,  this avenue, too,  is closed to            appellant, as   1292(b)  grants discretionary jurisdiction to            the court  of appeals only  if the  district court  certifies            that the case involves  "a controlling question of law  as to            which  there  is  a  substantial  ground  for  difference  of            opinion,"   and  an   immediate  resolution  by   appeal  may            "materially   advance"  the   ultimate  termination   of  the            litigation.   Although appellant's failure to  expressly seek            such a certificate here might be held to be a waiver, we need            not  decide that question, for contrary to the allowance in              1292(b), the  district  court expressly  determined that  the            only legal issues raised were simple, and easily  disposed of                                         -4-            on  the merits.1    Finally, as  it  appears that  there  are            available  adequate alternative appellate  processes, we have            no occasion consider  these appeals under the  All Writs Act,            28 U.S.C.   1651.                 For the foregoing reasons,  these appeals are  dismissed                                             ____________________________            without prejudice.   Since we  have no jurisdiction,  we also            _____________________________________________________________            deny  appellant's motion  to supplement  the record  with new            _____________________________________________________________            evidence.   Appellee's  request  for costs  and sanctions  is            _____________________________________________________________            denied.            _______                                                         ____________________            1.  Unlike 28  U.S.C.   1292(b),   158(a) does not  set forth            express  standards to  guide  the district  court's grant  of            leave to appeal from an interlocutory bankruptcy order to the            district court.   In the absence of an  express certification            under   1292(b),  then, we  would  not  ordinarily  be  in  a            position to conclude  that a district court's  grant of leave            to  take  a first  stage  appeal  under  158(a),  necessarily            included consideration  of the issues relevant  to a  1292(b)            certificate.  In this  case, the district court's articulated            reasons for  granting leave under    158(a) included findings            opposed  to  those  required   for  issuance  of  a   1292(b)            certificate,  and so  we  need not  reach  the further  issue            whether  appellant's   failure   to  seek   the   certificate            effectively waived his right to do so.                                         -5-
