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BankruptcyThe Bankruptcy StrategistFeatures

Inconvenient Bankruptcy Appeals

By Michael L. Cook
December 01, 2024

“We are not final because we are infallible, but we are infallible only because we are final,” according to a U.S. Supreme Court Justice. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J. concurring). Bankruptcy courts are not infallible, though, and their rulings should be reviewable. But too many district courts and bankruptcy appellate panels (BAPs) regularly refuse to review nonfinal (i.e., interlocutory) bankruptcy court orders for questionable reasons. See, In re Western Robidoux, Inc., 2024 W.L. 4531764, *5 (8th Cir. BAP Oct. 21, 2024) (BAP declined to review nonfinal bankruptcy court professional retention order because “review under [28 U.S.C.] §158 (a)(3) is not appropriate ….”). In Western Robidoux, the court claimed to lack discretion to review “certain interlocutory orders,” relying on a rigid standard for appellate review that effectively makes appellate review a matter of the reviewing court’s convenience.

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