FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-16153

SS FARMS, LLC, SSC FARMING,

 D.C. No. LLC, SSC FARMS I, LLC, SSC

2:09-cv-02937-MCE FARMS II, LLC, AND SCOTT SALYER,

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

1489
In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-16154

SS FARMS, LLC, SSC FARMING,

 D.C. No. LLC, SSC FARMS I, LLC, SSC

2:09-cv-02938-MCE FARMS II, LLC, AND SCOTT SALYER,

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-16155

SS FARMS, LLC, SSC FARMING,

 D.C. No. LLC, SSC FARMS I, LLC, SSC

2:09-cv-02940-MCE FARMS II, LLC, AND SCOTT SALYER,

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

1490 IN THE MATTER OF SK FOODS
In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-16156

SS FARMS, LLC, SSC FARMING,

 D.C. No. LLC, SSC FARMS I, LLC, SSC

2:09-cv-02941-MCE FARMS II, LLC, AND SCOTT SALYER,

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-

SS FARMS, LLC, SSC FARMING,

 D.C. No. LLC, SSC FARMS I, LLC, SSC

2:09-cv-02942-MCE FARMS II, LLC, AND SCOTT SALYER,

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

IN THE MATTER OF SK FOODS 1491
In the Matter of: SK FOODS, L.P. 

AND RHM INDUSTRIAL/SPECIALTY

FOODS, INC.,

Debtor,

No. 10-16160

SS FARMS, LLC, SSC FARMING, D.C. No.  LLC, SSC FARMS I, LLC, SSC 2:09-cv-02939-MCE

FARMS II, LLC, AND SCOTT SALYER, OPINION

Appellants,

v.

BRADLEY D. SHARP,

Trustee-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England Jr., District Judge, Presiding

Argued and Submitted

November 15, 2011—San Francisco, California

Filed February 9, 2012

Before: Alex Kozinski, Chief Judge, Carlos T. Bea,

Circuit Judge, and Robert W. Gettleman,

Senior District Judge.*

Opinion by Judge Bea

*The Honorable Robert W. Gettleman, Senior United States District

Judge for the Northern District of Illinois, sitting by designation. 

1492 IN THE MATTER OF SK FOODS
COUNSEL

Kelly A. Woodruff (argued), Farella Braun & Martel LLP,

San Francisco, California, for the appellants.

Malcolm S. Segal, James R. Kirby II and James P. Mayo,

Segal & Kirby LLP, Sacramento, California, for appellant

Scott Salyer.

Larry J. Lichtenegger, Lichtenegger Law Office, Carmel, California, for appellants SS Farms, LLC, SSC Farming, LLC,

SSC Farms I, LLC and SSC Farms II, LLC.

Nancy Winkelman (argued) and Bruce Merenstein, Schnader

Harrison Segal & Lewis LLP, Philadelphia, Pennsylvania,

Gregory C. Nuti and Kevin W. Coleman, Schnader Harrison

Segal & Lewis LLP, San Francisco, California, for the appellee.

1494 IN THE MATTER OF SK FOODS
OPINION

BEA, Circuit Judge:

A trustee in Chapter 11 bankruptcy proceedings took possession of Appellants’ documents, which Appellants had

deposited at the debtor’s office. Appellants claim the trustee

acted illegally; that the documents should be returned; and

that the trustee and his counsel should be removed. The bankruptcy court denied such relief, and the district court affirmed.

This appeal raises the issue whether such orders of the bankruptcy court, affirmed by the district court, are final appealable orders under 28 U.S.C. § 158(d)(1). As explained below,

we hold that they are not; accordingly, we dismiss for lack of

jurisdiction.

I. Facts and Procedural History

Debtor SK Foods permitted Appellants to store financial,

business, estate planning, and other documents on its premises. Some of these documents were physically stored on site;

others were stored in a combined computer system run by SK

Foods personnel. 

In April 2008, the United States Department of Justice

Antitrust Division and other government agencies raided the

premises of SK Foods, seized “an enormous volume of

records and copied many other documents and computers.”

The raid was followed by a federal grand jury investigation

and criminal informations charging current and former

employees of SK Foods with fraud, bribery and other

offenses.

More than a year later, SK Foods filed for Chapter 11 bankruptcy. Bradley Sharp was appointed as trustee of the debtor’s

estate, and he took possession of all records located on its

premises, including documents and electronic files belonging

to Appellants. Upon discovering that the trustee had taken

IN THE MATTER OF SK FOODS 1495
possession of their documents, Appellants demanded return of

the original documents without further review. The trustee

refused, stating that possession and review of the documents

were attendant to the discharge of his duties. 

Appellants filed a motion to remove the trustee and disqualify his counsel on the grounds that the seizure and continued possession of Appellants’ documents violated the Fourth

Amendment and various state laws. On the same grounds,

Appellants’ motion also requested a protective order requiring

the return of their documents. The trustee filed a countermotion requesting an order confirming his authority to continue to possess and review the documents. 

The bankruptcy court held oral argument on three issues:

(1) removal of the trustee; (2) disqualification of the trustee’s

counsel; and (3) the trustee’s continued possession of Appellants’ documents. It then denied Appellants’ motion and

granted the trustee’s counter-motion.

Appellants appealed to the district court, which affirmed

the bankruptcy court on all issues. Appellants appealed to this

court.

II. Jurisdiction

[1] Under 28 U.S.C. § 158(d)(1), we have appellate jurisdiction over “final orders of the district courts reviewing

bankruptcy court decisions.” In re Westwood Shake & Shingle, Inc., 971 F.2d 387, 389 (9th Cir. 1992). “To determine

whether a district court order is final, we must look to the

nature of the underlying bankruptcy court order. If the underlying bankruptcy court order is interlocutory, so is the district

court order affirming or reversing it.” Id. (internal citation

omitted). Although the district courts have discretion to consider interlocutory appeals, we do not. Id.

[2] A bankruptcy court order is considered final “where it

1) resolves and seriously affects substantive rights and 2)

1496 IN THE MATTER OF SK FOODS
finally determines the discrete issue to which it is addressed.”

In re AFI Holding, 530 F.3d 832, 836 (9th Cir. 2008) (internal

quotation marks and citations omitted). 

[3] The bankruptcy court’s order denying removal of the

trustee is not final: It neither resolves nor seriously affects

substantive rights, nor finally determines the discrete issue to

which it is addressed, since the trustee could be removed at

a later time. Moreover, if a party could file an interlocutory

appeal every time he tried unsuccessfully to remove a trustee,

he could bring the litigation to a never-ending standstill.

[4] In AFI Holding, this court held that a bankruptcy

court’s order granting removal of a trustee is a final order. Id.

at 837. However, the two situations—removal and denial of

removal—are not symmetrical. So long as a trustee remains

in office, the status quo ante continues and his actions may be

reviewed throughout the bankruptcy proceedings. However,

when a trustee is removed for cause, such an order alters the

status quo ante because the trustee can no longer act in the

continued bankruptcy proceedings. Therefore, since an order

denying removal of the trustee preserves the status quo ante

and may be later revisited, such an order is not an appealable

final order.1

[5] The bankruptcy court’s order denying Appellants’

motion for the return of records and granting the trustee’s

counter-motion does not resolve substantive rights or finally

determine a discrete issue. Instead, the order permits the continued possession and review of documents already in the

possession of the trustee. Reviewing the order on appeal now

would not finally determine the issue whether the trustee

1AFI Holding cited Matter of Schultz Mfg. Fabricating Co., 956 F.2d

686, 691-92 (7th Cir. 1992), as “treating the denial of a motion to remove

a trustee as a final order.” However, AFI Holding did not hold that such

a denial is a final order, and Schultz did not address the issue; it merely

assumed that the denial was a final order. 

IN THE MATTER OF SK FOODS 1497
could use the documents, because the issue of possession and

use of the records could arise again in further proceedings—

for instance, in a motion for relief from the automatic stay or

in a discovery dispute in an adversary proceeding. See In re

Lewis, 113 F.3d 1040, 1043 (9th Cir. 1997) (“[T]raditional

finality concerns nonetheless dictate that we avoid having a

case make two complete trips through the appellate process.”

(internal quotation marks and citations omitted)). Therefore,

the bankruptcy court’s order denying Appellants’ motion for

the return of records and granting the trustee’s counter-motion

is not a final order.

[6] Nor is the bankruptcy court’s order denying disqualification of counsel final: “Where the underlying bankruptcy

court order involves the appointment or disqualification of

counsel, courts have uniformly found that such orders are

interlocutory even in the more flexible bankruptcy context.”

In re Westwood Shake & Shingle, Inc., 971 F.2d at 389.

[7] Because all issues on appeal involve interlocutory

orders, we dismiss for lack of jurisdiction.

DISMISSED. 

1498 IN THE MATTER OF SK FOODS