
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                      __________        No. 92-2212                           IN RE HILDA SOLTERO HARRINGTON,                                       Debtor,                                        ______                   ESTANCIAS LA PONDEROSA DEVELOPMENT CORPORATION,                                 Plaintiff, Appellee,                                          v.                             HILDA SOLTERO HARRINGTON AND                               RAFAEL DURAND MANZANAL,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________             Jose Luis Novas-Dueno for appellants.             _____________________             Jaime  Sifre  Rodriguez with  whom  Luis  A. Melendez-Albizu  and             _______________________             ________________________        S nchez-Betances & Sifre were on brief for appellee.        ________________________                                 ____________________                                    April 30, 1993                                 ____________________                    CYR,  Circuit Judge.   After the  chapter 11  estate of                    CYR,  Circuit Judge.                          _____________          Hilda  Soltero  Harrington  recovered judgment  in  an  adversary          proceeding against Estancias La Ponderosa Development Corporation          (hereinafter "Ponderosa"), Ponderosa filed an untimely  notice of          appeal and a motion  to permit late filing under  Bankruptcy Rule          8002(c).    The  bankruptcy court  denied  Ponderosa's motion  to          permit  late  filing,  and,   accordingly,  declined  to   docket          Ponderosa's   notice   of   appeal.       Ponderosa   moved   for          reconsideration, which  was denied.  Ponderosa  then appealed the          denial of  its motion for reconsideration to  the district court.          Following  a further appeal to this court to clarify the district          court's jurisdiction, the district court reversed the  bankruptcy          court's denial  of Ponderosa's motion for  reconsideration of the          Rule  8002(c)  motion, and  remanded  with  directions to  docket          Ponderosa's  original notice  of appeal.   Appellants  now appeal          from the district court remand order.1                    An appellate order entered  by a district court sitting          in bankruptcy  is not appealable to the court of appeals under 28          U.S.C.     158(d)  unless   it  is   "final,"  i.e.,   unless  it                                                         ____          conclusively determines  "a discrete  dispute  within the  larger          case."   See In re  G.S.F. Corp., 938  F.2d 1467, 1473  (1st Cir.                   ___ ___________________          1991); Tringali v.  Hathaway Mach.  Co., 796 F.2d  553, 558  (1st                 ________     ___________________          Cir.  1986); In re  American Colonial Broadcasting  Co., 758 F.2d                       __________________________________________          794, 801 (1st  Cir. 1985); see also In re  Saco Local Dev. Corp.,                                     ___ ____ ____________________________                                        ____________________               1Appellants  are  chapter  11  trustee  David  Manzanal  and          chapter 11 debtor Hilda Soltero Harrington.          711 F.2d 441, 445-46  (1st Cir. 1983) ("separable dispute  over a          creditor's claim or priority"); 9 Collier on Bankruptcy   8001.06                                            _____________________          (15th ed. 1991).  As appellants see it, the district court remand          order  is  "final" because  it  directs the  bankruptcy  court to          docket Ponderosa's initial notice  of appeal despite its untimely          filing, thereby  resolving the  one issue  placed  in dispute  by                                              _____          Ponderosa's  appeal from  the  bankruptcy court's  denial of  the          motion  for  reconsideration.     We  disagree  with  appellants'          analysis.                    We  recognize  that  "'finality'  is [to  be]  given  a          flexible interpretation in bankruptcy," G.S.F. Corp., 938 F.2d at                                                  ____________          1472-73, where  necessary to  accommodate concerns unique  to the          nature  of bankruptcy proceedings.   See In re Empresas Noroeste,                                               ___ ________________________          Inc.,  806  F.2d  315,  316-17  (1st  Cir. 1986)  (relaxation  of          ____          "finality" doctrine appropriate in bankruptcy proceedings only on          sufficient   showing   of   "special  considerations   bankruptcy          proceedings deserve").2   Nevertheless, a  district court  remand                                        ____________________               2As we acknowledged in G.S.F Corp., one such concern is that                                      ___________          "bankruptcy  cases  typically   involve  numerous   controversies          bearing only  a slight relationship to each other," G.S.F. Corp.,          _______ ____  _ ______ ____________ __ ____ _____   ____________          938 F.2d at 1473 (emphasis  added), and extraordinary delay could          result  if  parties  whose  substantive  rights  had  been  fully          litigated  below were required to await  resolution of the entire          bankruptcy  case before taking an  appeal.  For  example, we have          entertained an immediate appeal under 28 U.S.C.   1291 to resolve          a  dispute over  the  authority and  procedure  for appointing  a          chapter 11  trustee.   See In re  Plaza de  Diego Shopping  Ctr.,                                 ___ ______________________________________          Inc.,  911 F.2d  820, 826 (1st  Cir. 1990) (noting  that "[i]f an          ____          appeal were  postponed until a  plan of reorganization  were con-          firmed,  there would be no satisfactory way to vindicate the U.S.          Trustee's right to appoint, as there is no authority to appoint a          new  trustee after  confirmation"  of a  chapter  11 plan).    On          somewhat different  grounds, we have  permitted immediate appeals          from  district  court  orders   lifting  automatic  stays.    See                                                                        ___                                          3          order in an  intermediate appeal  from a judgment  entered in  an          adversary proceeding  is not  final and appealable  under section          158(d) of the Judicial Code, see Fed. R. Civ. P. 54(a), (b); Fed.                                       ___          R.  Bankr.  P.  7054(a),  9002,  9014,  unless  it  resolves  all          procedural  and  substantive  issues  necessary  to  conclude the          entire  appeal.3    Were  appellate review  available  on  demand          whenever a district court definitively resolved a contested legal                                                                      _____          issue, without regard to  whether the entire adversary proceeding          _____          had  been resolved,  the  "finality" rule  would be  eviscerated.          Cf., e.g., American Colonial Broadcasting, 758 F.2d at 801 ("[a]n          ___  ____  ______________________________                                        ____________________          Tringali, 796  F.2d at 557;  see also G.S.F.  Corp., 938  F.2d at          ________                     ___ ____ _____________          1473 (citing In re Chateaugay Corp., 880 F.2d 1509, 1512 (2d Cir.                       ______________________          1989)).  But see infra note 3.                   ___ ___ _____               3An important purpose  of the Bankruptcy Reform  Act of 1978          was to  conform  the practice  and procedure  in Bankruptcy  Code          cases as near as may be to ordinary civil actions.  See, e.g., 28                                                              ___  ____          U.S.C.    158(c); Fed. R. Bankr.  P. 7054(a), 8002  & 9002.  With          that aim in  mind, most Federal Rules of Civil Procedure are made          directly applicable  in certain proceedings in  bankruptcy.  See,                                                                       ___          e.g., Fed.  R. Bankr. P. 7001-7071  (adversary proceedings), 9014          ____          (contested  matters).    The  Bankruptcy  Rules  recognize  three          distinct  types   of  proceedings   within  a  bankruptcy   case:          adversary proceedings, administrative proceedings,  and contested          matters.   Adversary  proceedings  are most  like ordinary  civil          actions;  contested  matters are  substantially  similar; whereas          most administrative proceedings are  quite dissimilar to ordinary          civil actions.               The  great  similarity between  an  adversary  proceeding in          bankruptcy   and  an   ordinary  civil   action   has  particular          significance  in the present  context.  In  the typical adversary          proceeding,  the "finality"  determination closely  resembles the          finality  determination  in  "an  ordinary  'case'  [between  the          parties] in a  district court," In re Public  Serv. Co., 898 F.2d                                          _______________________          1,  2  (1st Cir.  1990).   Just as  an appeal  in a  civil action          normally may not be  taken under section 1291 until all claims of          all parties to the action have been finally resolved, see Fed. R.                                                                ___          Civ.  P. 54(b), so too  must some special  justification be shown          for  departing  from  the  finality rule  relating  to  adversary          proceedings  and contested matters, see Fed. R. Bank. P. 7054(a),                                              ___          9002(1) & 9014.  See also supra note 2.                           ___ ____ _____                                          4          order which 'does  not finally  determine a cause  of action  but          only decides some intervening matter pertaining to the cause, and          which requires further steps to  be taken in order to enable  the          court  to  adjudicate the  cause  on the  merits,'  is considered          interlocutory") (quoting In re Merle's, Inc., 481  F.2d 1016 (9th                                   ___________________          Cir. 1973)).                    The district court remand order contemplated no "signi-          ficant further proceedings" before the bankruptcy court; that is,          the bankruptcy court's role on remand    docketing the late-filed          notice of appeal    fairly can be characterized as "ministerial."          See  In re Gould  & Eberhardt Gear  Mach. Corp., 852  F.2d 26, 29          ___  __________________________________________          (1st  Cir. 1988); In  re Riggsby, 745  F.2d 1153, 1156  (7th Cir.                            ______________          1984)).   Moreover,  the  narrow issue  presented by  Ponderosa's          current  appeal to the district court, i.e., the propriety of the          _______                                ____          bankruptcy  court's denial  of the  Rule 8002(c) motion,  has now          been decided.   Nevertheless,  upon the docketing  of Ponderosa's          original notice  of appeal  from the judgment  of the  bankruptcy          court, all substantive and  procedural claims raised by Ponderosa          in its challenge to the merits of the underlying bankruptcy court          judgment  will remain  to be  determined in  the district  court.          Should  the  district  court  resolve  the  merits  favorably  to          appellants,  the present  appeal from  the district  court remand          order "may well [be]  obviate[d] . . . ."  Bowers  v. Connecticut                                                     ______     ___________          Nat'l Bank, 847 F.2d 1019, 1023 (2d Cir. 1988); Riggsby, 745 F.2d          __________                                      _______          at 1155-56.  Thus, the  remand order is not final and  appealable          under  28 U.S.C.    158(a),(d).   See Fed. R.  Civ. P. 54(a),(b);                                            ___                                          5          Fed. R. Bankr. P. 7054(a), 9001(7), 9002(1), (2),(5).                    Finally,   no   cognizable   "hardship"    or   special          bankruptcy-related  consideration  is   demonstrated  simply   by          pointing to the  time and expense  of litigating an  intermediate          appeal to its  conclusion in  the district court.   See  Empresas                                                              ___  ________          Noroeste, 806  F.2d at 317; see also In re El San Juan Hotel, 809          ________                    ___ ____ _______________________          F.2d  151, 154 (1st Cir.  1987) ("The burden  of litigation . . .          cannot alone constitute the irreparable harm necessary to warrant          appellate  jurisdiction  over  an interlocutory  order.").    For          similar reasons,  we reject  Harrington's attempts to  invoke the          "collateral-order" doctrine, see Cohen v. Beneficial  Indus. Loan                                       ___ _____    _______________________          Corp., 337 U.S. 541 (1949), and our mandamus jurisdiction, see 28          _____                                                      ___          U.S.C.    1651,   neither  of  which  is   available  unless  the          challenged  interlocutory  ruling  would  result  in "irreparable          harm" incapable of vindication  on appeal from a later  judgment.          See, e.g.,  Appeal of Licht  & Semonoff,  796 F.2d 564,  571 (1st          ___  ____   ___________________________          Cir.  1986)  ("collateral  order"  doctrine requires  showing  of          "irreparable harm");  In re Recticel  Foam Corp., 859  F.2d 1000,                                __________________________          1006 (1st Cir. 1988) ("irremediable harm," beyond mere burden  of          extended litigation, necessary for issuance of writ of mandamus).                    The appeal is dismissed for lack of jurisdiction; costs                    The appeal is dismissed for lack of jurisdiction; costs                    _______________________________________________________          to appellee.          to appellee.          ___________                                          6
