Opinion
BANKRUPTCY CASE NO. 01-39578-SAF-13, MISCELLANEOUS NO. 3:03-MC-045-G
May 12, 2003
MEMORANDUM ORDER
Before me in this matter are a petition for relief from disciplinary action (filed April 22, 2003) ("petition for relief"), a notice of appeal (also filed April 22, 2003), and an emergency motion to set aside order of suspension (filed May 7, 2003) ("emergency motion"). For the reasons to be stated below, the petition for relief and emergency motion are denied. Alternatively, considering the matter before me as an appeal from the bankruptcy court under 28 U.S.C. § 158, the appeal is dismissed.
Petition for Relief
The petition for relief is apparently submitted to me as chief district judge under the provisions of Local Civil Rule 83.8(c). That rule provides that "[a]n attorney who is suspended or disbarred under LR 83.8(b) shall have the right to petition the chief judge of this court for relief." N.D. TEX. Civ. P. 83.8(c). It appears, however, that Judge Felsenthal of the bankruptcy court was acting under Local Civil Rule 83.8(a) rather than Local Civil Rule 83.8(b). See April 9, 2003 Order at 3 (citing Rule 83.8(a)(1)). Rule 83.8(a) does not, by its terms, give a right of appeal to the chief district judge.
Although the local rules apply to reciprocal discipline arising from a suspension addressed in Rule 83.8(a), they do so under a procedure that the district court, not the bankruptcy court, initiates. See Rule 83.8(h). Under that procedure, which is commenced by the chief district judge or his designee, a three-judge panel of this court would hear the reciprocal discipline matter.
But even if Judge Felsenthal did intend to act under Rule 83.8(b), the local rules of this court do not provide for direct review by the chief district judge of a bankruptcy judge's disciplinary ruling. Suspension or disbarment under Rule 83.8(b) is imposed by "[a] presiding judge." Rule 1.1(b) defines "presiding judge" as "the judge to whom a case is assigned." N.D. TEX. Civ. P. 1.1(b). It also provides that "[t]he word "judge' includes district judges and magistrate judges." Id. Accordingly, the right to petition the chief district judge for review of suspension or disbarment is limited to discipline imposed by a district or magistrate judge. Stated differently, I find no warrant in the local rules for me, as chief district judge, to review this disciplinary decision of a bankruptcy judge.
See Thompson v. Goetzmann, 315 F.3d 457, 464 (5th Cir. 2002) (referring to "the well-known interpretative canon, expressio unius est exclusio alterius — `the expression of one thing implies the exclusion of another'").
So far as I have been able to determine, the bankruptcy court does not have a local rule globally incorporating the local rules of the district court. The bankruptcy court does have a local rule — Rule 9029.3 — that provides:
The District Court Local Civil Rules which are incorporated by reference and made applicable by these rules shall be the District Court Local Civil Rules in effect on the effective date of these rules and as thereafter amended, unless otherwise provided by such amendment.
This rule appears to mean that if a local district court rule is incorporated by reference in a bankruptcy court local rule, the version that applies shall be the current one. I have found no instance in which Rule 83.8 is explicitly incorporated in the bankruptcy court's local rules.
Emergency Motion
The emergency motion asks me to "issue an ex parte order setting aside [the bankruptcy court's order of] suspension in full and permitting the undersigned to continue to practice before . . . the United States Bankruptcy Courts within this District." Emergency Motion at 3-4. It does not assert or argue any grounds not alleged in the petition for relief. Accordingly, to the extent that the emergency motion seeks relief under Local Civil Rule 83.8(c), such relief is denied for the same reasons discussed above.
Appeal from the Bankruptcy Court
As previously stated, a notice of appeal was also filed April 22, 2003. It states in pertinent part:
WAYNE H. COBB, JR., Respondent in the above captioned Miscellaneous Proceeding, appeals under 28 U.S.C. § 158 (a) or (b) from the judgments, orders, or decrees rendered in the ORDER TO SHOW CAUSE, signed by Stephen A. Felsenthal, U.S. Bankruptcy Judge, and entered in that proceeding on or about January 24, 2003, and on or about April 9, 2003.
Notice of Appeal.
This notice of appeal was untimely under Bankruptcy Rule 8002(a). That rule requires a notice of appeal to be filed within ten days after entry of the order appealed from. "This ten day requirement is jurisdictional and cannot be waived." Matter of Topco, Inc., 894 F.2d 727, 733 n. 7 (5th Cir. 1990) (citing In re Aguilar, 861 F.2d 873, 874 (5th Cir. 1988)); Matter of Robinson, 640 F.2d 737, 738 (5th Cir. 1981). Because the district court never acquired jurisdiction over this appeal, the appeal must be DISMISSED .
It is perhaps superfluous to note that since I did not reach the merits of these alternative requests for review of Judge Felsenthal's disciplinary decision, nothing herein precludes application to him for relief from that decision.