## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 7 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: WESTERN PACIFIC AIRLINES, INC., a Delaware corporation, Debtor,

-------------------------------------------- BOULLIOUN AIRCRAFT HOLDING COMPANY, INC.; BOULLIOUN PORTFOLIO FINANCE I, INC., Appellants,

v. SMITH MANAGEMENT; WESTERN PACIFIC AIRLINES, INC., OFFICIAL COMMITTEE OF UNSECURED CREDITORS; JEFFREY A. WEINMAN, Chapter 7 Bankruptcy Trustee, Appellees. No. 98-1018

In re: WESTERN PACIFIC AIRLINES, INC., a Delaware corporation Debtor,

-------------------------------------------- SMITH MANAGEMENT COMPANY- 2 -

and JEFFREY A. WEINMAN, Chapter 7 Bankruptcy Trustee, Appellees,

v. AIRCORP, INC. and BOULLIOUN AIRCRAFT HOLDING COMPANY, INC., Appellants,

-------------------------------------------- ORIX, AIRCRAFT FINANCERS, and ATLAS AIR, INC., Amici Curiae. No. 98-1214

Appeal from the United States District Court

for the District of Colorado (D.C. No. 97-K-2564 and 98-K-358)

Susan M. Freeman of Lewis and Roca, LLP, Phoenix, Arizona (Daniel F. Warden, Bond & Morris, Denver, Colorado, with her o n the briefs), for appellants Boullioun. David T. Brennan of Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, Colorado (Stephen J. Shimshak, Paul, Weiss, Rifkind , Wharton & Garrison, New York, New York with him on the briefs), for appelle e Smith Management Company. Mark L. Fulford of Sherman & Howard, LLC, Denver, C olorado, for appellee Jeffrey A. Weinman, Chapter 7 Bankruptcy Trustee.- 3 -

Paul D. Rubner of Rubner & Kutner, P.C., Denver, Co lorado and William J. Rochelle, III, of Fulbright & Jaworski, LLP, New Yo rk, New York, filed amicus curiae briefs for Orix. M.O. Sigal, Jr. and Jacob S. Pultman of Simpson Tha cher & Bartlett, New York, New York, filed an amicus curiae brief for AircraftFinancers. Kevin J. Burke, Marc J. Korpus, and James E. Rosenf eld of Cahill Gordon & Reindel, New York, New York, filed an amicus curiae brief for Atlas Air, Inc.

Before BRORBY , HOLLOWAY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

We consider whether an appeal by an aircraft lessoris moot if the lessor seeks modification of post-petition lenders’ bargai ned-for collateral but has failed to seek a stay of the relevant post-petition financ ing order pursuant to 11 U.S.C. § 364(e). For the reasons set forth below, we conclu de that these appeals are moot and dismiss. Solely because of case-specific, equi table considerations, we do not vacate the decisions below.
I These appeals arise from bankruptcy proceedings reg arding Western Pacific Airlines, Inc. (“WestPac”). In appeal No. 98-1018 (“the lease assignment appeal”), Boullioun Aircraft Holding Co. and Boulli oun Portfolio Finance I, Inc. (“Boullioun”) challenge the bankruptcy court’s Dece mber 10, 1997, decision that1 Section 1110 provides, in relevant part, as follows:

(a)(1) The right of a secured party with a security interest in equipment described in paragraph (2) or of a lessor or conditional vendor of such equipment to take possession of such equipment in compliance with a security agreement, lease, or conditional sale contract is not affected by section 362, 363 or 1129 or by any power of the court to enjoin the taking of possession unless— (A) before the date that is 60 days after the date of the order for relief under this chapter, the trustee, subject to the court’s approval, agrees to perform all obligations of the debtor that become due on or after the date of the order under such security agreement, lease, or conditional sale contract; and (B) any default, other than a default of a kind specified in section 365(b)(2) under such security agreement, lease, or conditional sale contract— (i) that occurs before the date of the order is cured before the expiration of such 60-day period; and (ii) that occurs after the date of the order is cured before the (continued...) - 4 - WestPac could assign its interest in three planes t hat it leased from Boullioun as collateral to providers of post-petition financing, despite provisions in the leases prohibiting such assignment. See In re Western Pacific Airlines, Inc. , 223 B.R. 567, 573 (D. Colo. 1997). The district court dismi ssed Boullioun’s appeal of this holding as moot. See In re Western Pacific Airlines, Inc. , 216 B.R. 437, 440 (D. Colo. 1998). Essentially, Boullioun challenges the bankruptcy court’s determination that 11 U.S.C. § 365(f)(1), which per mits assignment of leases by a bankruptcy trustee, is not trumped by 11 U.S.C. § 1 110, which exempts, under certain circumstances, an aircraft lessor’s power t o retrieve its aircraft following a lease default from the powers of the court to enjoi n repossession. 11 (...continued) later of— (I) the date that is 30 days after the date of the default; or (II) the expiration of such 60-day period

.

- 5 - In appeal No. 98-1214 (“the repossession appeal”), Boullioun challenges the district court’s interpretation of another aspe ct of 11 U.S.C. § 1110. The district court, in In re Western Pacific Airlines, Inc. , 219 B.R. 305, 309-10 (D. Colo. 1998), concluded that § 1110 ceases to have e ffect once an aircraft lessee cures existing defaults within the allotted time pe riod and promises not to default again, even if the lessee subsequently defaults on lease terms. Boullioun also seeks affirmance of the bankruptcy court’s determin ation, not reached by the district court, that once it is clear to a lessor t hat a lessee has defaulted and will not cure, the lessor need not wait until thirty day s have expired before repossessing its aircraft.
II At the threshold, we consider appellees’ assertion that these appeals are moot. “We review the issue of mootness de novo.” Anderson v. United States Dep’t of Health & Human Services , 3 F.3d 1383, 1384 (10th Cir. 1993). Generally, a federal court cannot give opinions abs ent a live case or controversy before it. See Mills v. Green , 159 U.S. 651, 653 (1895). Specifically, a case becomes moot when it becomes “impossible for the co urt to grant ‘any effectual2 There is no contention that the providers of post-petition financing to WestPac did

not extend credit in good faith. - 6 - relief whatever’ to a prevailing party.” Church of Scientology v. United States , 506 U.S. 9, 12 (1992) (quoting Mills , 159 U.S. at 653).
A We first address appellees’ mootness claim with re spect to appeal No. 98- 1018, the lease assignment appeal. The district co urt concluded that Boullioun’s challenge to the bankruptcy court decision permitti ng assignment of Boullioun’s leases as collateral for the post-petition financin g is moot because of Boullioun’s failure to seek a stay of the financing order pursu ant to 11 U.S.C. § 364(e). See In re Western Pacific Airlines, Inc. , 216 B.R. at 440. Section 364(e) provides that [t]he reversal or modification on appeal of an auth orization under this section to obtain credit or incur debt, or of a grant under this section of a priority or a lien, does not affect th e validity of any debt so incurred, or any priority or lien so granted, to an entity that extended such credit in good faith, whether or not such entity knew of the pendency of the appeal, unless such authoriz ation and the incurring of such debt or the granting of such prio rity or lien, were stayed pending appeal. 11 U.S.C. § 364(e). 2 Although § 364(e) facially provides for the “revers al or modification on appeal” of an authorization to incur debt and the g rant of a priority lien, it limits the effect of such modification if the challenging party has failed to seek a stay. Accordingly, § 364(e) renders some financing order challenges effectively moot.3 “[E]ven though [§] 364(e) standing alone does not require dismissal of an appeal

when a stay is not granted, it might establish circumstances which under law other than [§] 364(e) require dismissal of the appeal.” In re Swedeland Dev. Corp. , 16 F.3d at 559. In In re Osborn , 24 F.3d 1199, 1203-04 (10th Cir. 1994), we reached a similar conclusion regarding 11 U.S.C. § 363(m), the Bankruptcy’s Code’s other “mooting” provision.

4 The court in Clinton Street Food Corp. dismissed as moot a challenge to the security provisions of a relied-upon post-petition financing order based on § 364(e). See 170 B.R. at 219-220. - 7 - See, e.g. , In re Adams Apple, Inc. , 829 F.2d 1484, 1487-89 (9th Cir. 1987). An appeal is moot if the court can fashion no meaningf ul relief because of § 364(e).
See Church of Scientology , 509 U.S. at 12; In re Swedeland Dev. Corp. , 16 F.3d 552, 559-60 (3d Cir. 1994). 3 At the same time, “[if] a court can fashion ‘som e form of meaningful relief,’ even if it only partial ly redresses the grievances of the prevailing party, the appeal is not moot.” 16 F.3d at 559 (quoting Church of Scientology , 506 U.S. at 12-13). Thus, we must consider wheth er Boullioun can obtain meaningful relief from the complained-of ord ers despite its failure to seek a stay of the post-petition financing order. Cf. In re Osborn , 24 F.3d at 1203-04. We conclude that it cannot. We agree with the conclusion reached in In re Clint on Street Food Corp. , 170 B.R. 216, 220 (S.D.N.Y. 1994), that § 364(e) pr ohibits not only outright invalidation of a lien or priority where the challe nging party has failed to seek a stay, but also modification of the terms of a post- petition lender’s bargained-for collateral. 4 Such an interpretation stems from the language of § 364(e), as well as- 8 -

the purpose of this provision, which is to encourag e lenders to advance funds to a bankrupt company in reliance on the unstayed order of bankruptcy court, even if on appeal. See In re Adams Apple, Inc. , 829 F.2d at 1488; In re EDC Holding
Co. , 676 F.2d 945, 947 (7th Cir. 1982); In re Clinton Street Food Corp. , 170 B.R. at 220; 4 Norton Bankr. L. & Prac. 2d § 87:24 (1999 ). Accordingly, the fact that Boullioun does not seek disruption of the debtor-in -possession financing orders, modification of which is precluded by § 364(e), and instead argues for the modification of the economic consequences of the po st-petition financiers’ liens under 11 U.S.C. § 1110, does not save this case fro m mootness. In light of Congress’s intent in enacting § 364, see In re Adam’s Apple, Inc. , 829 F.2d at 1488, we read § 364(e) to apply not just to the val idity of financing itself, but also to the terms of collateralization. See In re Clinton Street Food Corp. , 170 B.R. at
220. We reject Boullioun’s argument that the reasoning o f the Third Circuit’s decision in In re Swedeland Dev. Corp. , 16 F.3d at 559-60, dictates that we find a live controversy here. The Swedelandcourt found one of several financing orders in a bankruptcy proceeding not moot on the grounds that funds under that order remained undistributed. See 16 F.3d at 561. Here, on the contrary, DIP funds5 Contrary to Boullioun’s contentions, the fact that Swedelandalso addressed an

appeal of denial of relief from the automatic stay under 11 U.S.C. § 362, see16 F.3d at 567, is entirely irrelevant to the mootness of this case. Here, Boullioun clearly appeals the district court’s substantive legal decision interpreting 11 U.S.C. §§ 365 and 1110. Boullioun does not appeal the denial of a motion under § 362(d).

6 This sanction stems from proceedings involving the third of Boullioun’s aircraft, eventually leased to Olympic Airways of Greece. When, on March 10, 1998, the district court ruled that § 1110 ceases to apply once a debtor in possession agrees to perform aircraft lease obligations and cures initial defaults, Boullioun had already sold two of its aircraft in reliance on a prior lease rejection order by the bankruptcy court. Boullioun was in the process of leasing the third aircraft to Olympic Airways. Following the district court’s March 10 order, on April 30, 1998, the bankruptcy court upheld the earlier rejection order as to the two aircraft already sold, but vacated its earlier rejection order as to the third aircraft. Subsequently, on August 24, 1998, the bankruptcy court again deemed WestPac’s lease of the third aircraft rejected, and validated the lease to Olympic Airways. However, the bankruptcy court ruled that Boullioun had violated the automatic stay by obtaining the replacement lease of the third aircraft following the April 30 order, and that the Estate was entitled to compensation for the attorney fees incurred by WestPac relating to the third aircraft. This amount was subsequently fixed at $4,000. By order dated February 16, 1999, the bankruptcy court approved a settlement between Boullioun and the trustee regarding the amount and priority of Boullioun’s claims. The settlement provided “that Boullion shall pay the Trustee the sum of $4,000 in accordance with the August 24, 1998 Order, subject to refund if the Tenth Circuit rules there was no stay violation.” In re Western Pacific Airlines, Inc. , Case No. 97-24701 SBB at 2 (Bankr. D. Colo. Feb. 16, 1999). - 9 - have been fully distributed in reliance on the fina ncing agreement, and merit full § 364(e) protection. 5 We also reject Boullioun’s argument that an unresol ved issue regarding a sanction of $4,000 in attorney fees saves this case from mootness. 6 The $4,000 sanction represents an award of attorney fees to th e estate for expenses arising from issues relating to one of three aircraft lease s. Precedent clearly indicates- 10 -

that “an interest in attorney’s fees is insufficien t to create an Article III case or controversy where a case or controversy does not ex ist on the merits of the underlying claim.” Cox v. Phelps Dodge Corp. , 43 F.3d 1345, 1348, n.4 (10th Cir. 1994) (citing Lewis v. Continental Bank Corp. , 494 U.S. 472, 480 (1990)). Under Bankruptcy Code § 364(e), an interest in atto rney fees cannot save a case from mootness where no possibility of relief exists with regard to the underlying dispute. Given § 364(e), Boullioun’s repossession of its aircraft, and the parties’ settlement of Boullioun’s remaining claims, we cann ot grant Boullioun any effective relief on its claims regarding the underl ying dispute. Thus we conclude that the potential refund of $4,000 in attorney fee s is insufficient to create a live controversy. See Lewis , 494 U.S. at 480; cf. In re Osborn , 24 F.3d at 1204 (declining to hold case moot under 11 U.S.C. § 363( m) when possible relief is available under state law). In its reply brief, Boullioun also argues that our resolution of the lease assignment issue will have legal consequences in pe nding bankruptcy court litigation regarding certain tax claims. Although its argument is unclear, Boullioun apparently contends that reversal of the order holding § 1110 inapplicable would shield its security deposits fro m the property tax claims at issue in the pending adversary proceeding. This po ssible consequence does not save this case from mootness. Potential collateral consequences in a separate- 11 -

adversary proceeding do not obviate our inability, under § 364(e), to fashion meaningful relief on Boullioun’s underlying claim r egarding § 1110. The only way to grant Boullioun the relief it seeks in the l ease assignment appeal, and thereby the collateral relief it seeks in the tax p roceeding, is for us to invalidate the district court’s unstayed decision in the finan cing order permitting assignment of the leases to Boullioun’s aircraft. This, as st ated above, is relief we cannot grant under § 364(e). Boullioun fails to point us to any other provision of the Bankruptcy Code or state law that would permit us t o fashion a remedy that would not disturb the validity of the financing and terms of its collateralization. Compare In re Clinton Street Food Corp. , 170 B.R. at 220 (holding that remedy modifying terms of collateralization is barred by § 364(e) absent stay, and therefore appeal is moot) with In re Osborn , 24 F.3d at 1204 (appeal is not moot under § 363(m) where state law may afford some alte rnative relief that would not affect the validity of a sale). We do not question Boullioun’s assertion that this appeal might have possible economic implications fo r it in the tax proceeding, but such potential implications do not change the fact that because of § 364(e), we cannot provide Boullioun the relief it seeks. See Church of Scientology , 506 U.S.
at 12-13.7As noted above, the bankruptcy court ruled in February of 1998 that WestPac’s

lease defaults entitled Boullioun to repossess its aircraft pursuant to § 1110. - 12 - B We turn to appellees’ claim that the repossession appeal, No. 98-1214, is moot. At issue here is the distric t court’s March 10, 1998, decision that Boullioun was not entitled, pursuant to its lease agreements and 11 U.S.C. § 1110, to repossess its aircraft despite We stPac’s lease default following its prior cure of defaults and entry into a § 1110( a) agreement. 7See In re Western Pacific Airlines, Inc. , 219 B.R. 305, 309-10 (D. Colo. 1998). The distri ct court reaffirmed this ruling on May 1, 1998. See In re Western Pacific Airlines, Inc. , 221 B.R. 1, 5 (D. Colo. 1998). The question for us is whether Boullioun was allowed to repossess its planes upon WestPac’s default. Because Boullioun has retrieved all three of its planes, appeal of this i ssue is moot as well. See Anderson , 3 F.3d at 1384.
III Having concluded that Boullioun’s appeals are moot, we must decide whether to vacate the decisions below. When a case becomes moot while on appeal, we generally vacate the judgment below and remand with a direction to dismiss. See United States v. Munsingwear, Inc. , 340 U.S. 36, 39 (1950). Vacatur, however, is an equitable remedy, see United States Bancorp Mortgage8In this order the bankruptcy court denied Boullioun’s motion for relief under

§ 1110.

9 This decision dismisses as moot Boullioun’s appeal of the bankruptcy court’s order authorizing the DIP financing. - 13 - Co. v. Bonner Mall Partnership , 513 U.S. 18, 24-29, and a key consideration in determining its appropriateness is whether the party seeking vacatur caused the mootness through voluntary action, see id. at 24. Boullioun urges us to vacate the bankruptcy court’s December 4, 1997 order 8 and the district court’s January 12, 1998 order 9 should we conclude, as we have, that Boullioun’s assignment appeal, No. 98-10 18, is moot. Boullioun argues that vacatur would free it from the preclusi ve effect of the lower court decisions regarding future assignment of Boullioun’ s aircraft leases. Appellees urge us not to vacate the decisions at issue in thi s appeal, based on their concern that such a decision could create unforseen problem s by complicating repayment issues, and could undermine actions taken in relian ce on the financing order by parties who are not involved with this suit. Considering the equities and the public interest, s ee United States Bancorp Mortgage Co. , 513 U.S. at 24-26, we conclude that vacatur would be inappropriate here. The decisions allowing assignm ent of Boullioun’s leases, including the bankruptcy court’s order of December 4, 1997, are closely linked to the authorization of the post-petition financing, a nd many parties, including- 14 -

parties not before us in this action, have taken st eps in reliance on that authorization. Our concern about the effect of vac atur on these parties, and our recognition of appellants’ contribution to the moot ness of this appeal by failing to seek a stay of the post-petition financing order pu rsuant to 11 U.S.C. § 364(e), and by repossessing and selling or re-leasing its a ircraft, see United States Bancorp Mortgage Co. , 513 U.S. at 24-25, persuade us that we should notvacate the orders at issue in this appeal. Considering the equities in No. 98-1214, see United States Bancorp Mortgage Co. , 513 U.S. at 24-26, we decline to grant vacatur of the decisions underpinning this appeal as well. By retrieving th e three planes as to which repossession rights were at issue in this action, B oullioun has voluntarily mooted this appeal. See id. Therefore, we decline to exercise our equitable p ower to
vacate. IV While we decline to vacate the decisions below, ouropinion should not be read as an affirmance of the underlying decisions o n the merits. We note, moreover, that many of these issues remain unresolv ed at the circuit level. They must await a live, redressable controversy for reso lution by this court. These appeals are DISMISSED

.