Opinion
No. A02-053 CV (JWS) [Re: Motion to Strike Appeal at Docket 3; Motion to Consolidate at Docket 5]
June 26, 2002
ORDER FROM CHAMBERS
I. MOTIONS PRESENTED
Northern Air Cargo ("NAC") appeals a bankruptcy court order. At docket 3, appellee Alaska Central Express ("ACE") moves to strike the appeal and NAC opposes the motion. At docket 5, NAC moves to consolidate this appeal with another appeal. ACE opposes that motion. The issues have been fully briefed. Neither party has requested oral argument and it would not be of assistance to the court.
That appeal is brought by USPS and concerns the same order. See U.S. v. Northern Air Cargo and Alaska Central Express, Inc., A02-63 CV (JWS).
II. BACKGROUND
The court's knowledge of the background is limited because the record has not yet been filed in this case and the parties have not offered a statement of facts in either motion.
On January 19, 2002, ACE filed a voluntary petition for Chapter 11 bankruptcy. At bankruptcy docket 14, the U.S. Attorney entered its appearance for the United States Postal Service ("USPS") and, at bankruptcy docket 54, NAC filed its notice of appearance. Prior to NAC's entry of appearance, ACE filed a motion to have the automatic stay declared applicable to the USPS. On the same day, USPS filed a motion for determination of inapplicability of the automatic stay. On February 19, 2002, the bankruptcy court issued an order granting ACE's motion and denying USPS's motion. That order was issued after the court conducted a hearing, at which attorneys for ACE, USPS and NAC were present, along with the United States Trustee.
Bankruptcy Doc. 1 ("BR Doc. ___"). The case number is B.R. A02-54 DMD.
B.R. Doc. 18 (USPS's motion); B.R. Doc. 19 (ACE's motion).
B.R. Doc. 65.
See B.R. Doc. 65, at 1.
USPS then filed its notice of appeal seeking review of the bankruptcy court's order denying its motion and granting ACE's. A few days later, NAC filed its own notice of appeal, along with an election to have the appeal heard in the U.S. District Court. Accordingly, on March 14, 2002 this court received the appeal. ACE then promptly filed a motion to strike NAC's notice of appeal. The court awaited the filing of a record in this case but received notice that the parties wished the court to decide the matter of consolidation so that a single record could be used.
B.R. Doc. 88 (as amended, filed March 4, 2002). The first Notice of Appeal was filed on March 1, 2002. B.R. Doc. 87.
B.R. Doc. 101 (filed March 7, 2002).
B.R. Doc. 102.
Doc. 1. The next day, the court issued notice to the parties of the USDC Appeal Number. Doc. 2.
III. DISCUSSION
Preliminary to the matter of consolidation, however, the court first considers ACE's motion to strike. That motion argues that NAC lacks standing to appeal the order at bankruptcy docket 65. For the reasons discussed below, ACE is correct that NAC lacks standing to appeal.
A. Standing to Appeal Bankruptcy Court Orders
The bankruptcy code does not define who has standing to appeal an order of the bankruptcy court. Nevertheless, the courts are unanimous that appellate standing in bankruptcy is determined under a "person aggrieved" standard. This standard is stricter than the Article III standing requirement and permits appeal only if the person is "directly and adversely affected pecuniarily by an order of the bankruptcy court." The purpose of this stricter standard is to avoid a potentially endless number of appeals brought by parties who are only indirectly affected by an order.
In re Menk, 241 B.R. 896, 917 (9th Cir. BAP 1999).
Matter of Fondiller, 707 F.2d 441, 442-43 (9th Cir. 1983).
Kane v. Johns-Manville Corp., 843 F.2d 636, 641-42 (2nd Cir. 1988).
B. NAC's Status as an "Aggrieved Party"
Because NAC is the party seeking to appeal, it has the burden of proving that it has standing to do so. An "aggrieved party" is one that experiences direct and adverse harm as a result of an order. That is, "the order must diminish the appellant's property, increase its burdens, or detrimentally affect its rights." Thus, the mere fact that a party appeared in a proceeding does not automatically provide standing to appeal absent evidence that the party has been aggrieved.
In re Parker, 139 F.3d 668, 670 (9th Cir. 1998) (stating that "appellant must show" he is an aggrieved party).
In re P.R.T.C., Inc., 177 F.3d 774, 777 (9th Cir. 1999).
In re Thompson, 965 F.2d 1136, 1141-42 (1st Cir. 1992) (citations omitted).
NAC, however, has not met its burden. In support of its claim that it does have standing to appeal, it argues only that ACE offers no legal or factual support for its argument that NAC is not a party. This does not discharge NAC's responsibility to demonstrate to this court that it is an aggrieved party. Further, NAC offers no evidence of any affect that the bankruptcy order will have on NAC. Instead, NAC relies on its filing of an entry of appearance in the main case and its appearance at the hearing on the order now being appealed. As discussed above this is insufficient to demonstrate appellate standing.
Opposition. (Doc. 7), at 2.
IV. CONCLUSION
For the reasons stated above, ACE's motion at docket 3 is GRANTED. Accordingly, NAC's motion at docket 5 is DENIED as moot.