Who Decides Disputes Over the Content of the Appellate Record? Ohio Bankruptcy Court Sides with Majority in Holding that Bankruptcy Court Decides Those Disputes

In Amedisys, Inc., v. JP Morgan Chase Manhattan Bank as Trustee, 2005 WL 3497805 (Bankr. S.D. Ohio, 12/22/05), the plaintiff appealed the bankruptcy court's order granting the defendants' partial summary judgment motion. The plaintiff designated items to be included in the record on appeal, and the defendants moved to strike some of these items.

The bankruptcy court looked at the split among the circuits on whether a bankruptcy court has the power to rule on disputes regarding the contents of the appellate record. In this well-researched opinion, the Court found that that a majority of courts hold that bankruptcy courts do have the power to rule on such disputes, stating:

These courts subscribing to the majority position have found that such authority (over the record on appeal) should remain with the bankruptcy court. Leaving this authority with the bankruptcy court will assist the appeal process as the bankruptcy court is in the best position to possibly strip off items improperly designated in a record on appeal. Sitting as the court of first impression, a bankruptcy court, according to the majority position, knows whether the parties placed the items in dispute before the court prior to its issuance of an appealable order. "While the filing of a notice of appeal generally divests a bankruptcy court of jurisdiction to proceed with respect to matters raised by the appeal, actions in aid of the appeal are not beyond its authority." Barrick Group, 100 B.R. at 154 (emphasis added) (citations omitted).


Most recently, in NWL Holdings, Inc. v. Eden Ctr., Inc. (In re Ames Dep't. Stores, Inc.), 320 B.R. 518, 520-21 (Bankr. S.D.N.Y. 2005), a bankruptcy court adopted the majority position by concluding that it had the authority to resolve a dispute over the contents of a record on appeal. The Ames court held that the content of the record on appeal should be resolved by the bankruptcy court, "where the record was designated, and where the matter sought to be included in the record was (or should have been) presented." Id. at 520-21. Stressing an even "more fundamental reason" for requiring that the content of the record on appeal be resolved by the bankruptcy court, the Ames court stated:

[T]he bankruptcy court knows best what was before it and what it considered in making its ruling. It is sometimes the case that [a] matter is submitted to a bankruptcy court in a way that, while consistent with notice and due process, evades formal docketing or designation. It also is sometimes the case that the bankruptcy court takes judicial notice of matters--such as earlier proceedings in that court. The bankruptcy judge, as the court that issued the decision and order appealed from, is in the best position to know what it considered. It also is in the best position to know what was not considered.

Id. at 521.

The court then examined -- and rejected -- the minority position, as expressed principally in In re Dow Corning Corp., 263 B.R. 544, 546 (Bankr. E.D. Mich. 2001). In rejecting this minority position, the Court looked to the Federal Rules of Appellate Procedure (in this case, Rule 10(e) of the Federal Appellate Rules) to resolve ambiguities in analogous provisions of the Bankruptcy Rules governing appeals of bankruptcy court decisions. The Court stated:

Dow essentially holds that a bankruptcy court lacks the power under Rule 8006 to grant a motion to strike designated items from the record on appeal. According to the Dow court, the plain language of Rule 8006 does not provide bankruptcy courts with the authority to strike items from a record on appeal. "Under the well-accepted rule of statutory construction stated as expressio unius est exclusio alterius, the express inclusion of one item of a class excludes others of the same class. The only kind of modification permitted under R. 8006 would thus be addition to, and not exclusion from, the record." Dow, 263 B.R. at 546 (quoting Berge v. Sweet (In re Berge), 37 B.R. 705, 708 (Bankr. W.D. Wis. 1983))....


The Court rejects Dow's reliance on the strict language of Rule 8006. Rather, the "strict language" of the rule simply does not speak to the issue of whether bankruptcy courts can properly review disputes over a record on appeal. Instead the reasoning employed in [WB, Ltd. v.] Tobago Bay [Trading Co. (In re Tobago Bay Trading Co.), 142 B.R. 534, 536 (Bankr. N.D. Ga. 1992)] as it dealt with this "jurisidictional lacuna," is far more persuasive....

According to Tobago Bay, reliance by bankruptcy courts on the Federal Rules of Appellate Procedure is appropriate in bankruptcy appeals, particularly when the Bankruptcy Rules do not speak to a question of appellate procedure. The Court agrees with this proposition because 28 U.S.C. § 158(c) provides that bankruptcy appeals shall generally be taken in the same manner as district court appeals, where the Federal Rules of Appellate Procedure are in force. When "[t]he Bankruptcy Rules do not provide an answer[,] [c]ourts construing other provisions of the Bankruptcy Rules have looked to analogous provisions in the Federal Rules of Appellate Procedure, governing appeals to the courts of appeals, for guidance...." A. Marcus, Inc. v. Farrow, 94 B.R. 513, 514 (N.D. Ill. 1989) (citation omitted). See also U.S. v. Fowler (In re Fowler), 394 F.3d 1208, 1215 (9th Cir. 2005) ("[L]ooking to a parallel federal appellate rule for guidance in applying a reasonable standard to a motion for rehearing [,]" was appropriate because the bankruptcy "rule simply does not speak to the issue.")....

Unquestionably, Rule 8006 does not spell out how disputes involving a record on appeal should be handled; however, looking to the analogue of Rule 8006--Rule 10(e) of the Federal Rules of Appellate Procedure is appropriate. In Tobago Bay, a bankruptcy court applied Appellate Rule 10(e) to strike items designated in the record on appeal because the "Federal Rules of Bankruptcy Procedure d[id] not provide a method to correct or modify the record on appeal[.]" 142 B.R. at 536. See also GHR Energy Corp. v. Crispin Co. Ltd. (In re GHR Energy Corp.), 791 F.2d 1200, 1201 (5th Cir.1986) (noting that Appellate Rule 10(e) applies to bankruptcy appeals); ... Collier, � 8006.03[1] ("It seems sensible to look to the practice and decisions under Appellate Rule 10 for guidelines to understanding Rule 8006.").

Appellate Rule 10 provides that, "[i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly." Fed. R.App. P. 10(e)(1). Thus, if any difference arises concerning the record in the district court, the difference shall be submitted to and settled by the district court, the court in which the record was made. See id. Applying Appellate Rule 10(e) to the present situation also directs this Court, where the original record was made, to decide this dispute over the record on appeal.

The Court rejects the minority position espoused by Dow. The minority position ignores the directive in 28 U.S.C. § 158(c) that provides that bankruptcy appeals shall generally be taken in the same manner as district court appeals, which are governed by the Federal Rules of Appellate Procedure. Applying Appellate Rule 10(e) to the present case and adopting the majority position lead the Court to the same result--that it has the authority to determine a dispute over the record on appeal. Lastly, adopting the minority position would lead to the untenable result of permitting any party appealing a decision of a bankruptcy court to designate absolutely any item it wishes for the appellate record.

For all these reasons, the Court finds that it does have jurisdiction to rule on whether the Disputed Items are properly included within the Designation.

© Steve Jakubowski 2005