FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE GARY LAWRENCE OZENNE,

Debtor,

GARY LAWRENCE OZENNE,

Appellant,

v.

CHASE MANHATTAN BANK; OCWEN

LOAN SERVICING; OCWEN FEDERAL

BANK FSB,

Appellees.

No. 11-60039

BAP No.

11-1208

OPINION

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Kirscher, Markell, and Dunn, Bankruptcy Judges, Presiding

Submitted December 9, 2014*

San Francisco, California

Filed March 25, 2016

Before: J. Clifford Wallace, Edward Leavy,

and Jay S. Bybee, Circuit Judges.

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 IN RE OZENNE

Opinion by Judge Wallace;

Partial Concurrence and Partial Dissent by Judge Bybee

SUMMARY**

Bankruptcy

Vacating the bankruptcy appellate panel’s (BAP) denial

of a petition for a writ of mandamus, the court of appeals held

that the BAP did not have jurisdiction to consider the

mandamus petition.

The court held that the BAP lacked jurisdiction under the

All Writs Act because the BAP, which is established by the

circuit judicial council pursuant to 28 U.S.C. § 158(b)(1), is

not one of the “courts established by Act of Congress.”

Concurring in the judgment only, and dissenting

otherwise, Judge Bybee wrote that the All Writs Act does not

require that a court be established directly by Congress. He

wrote that the majority’s opinion raises constitutional

problems because he doubts that Congress can delegate its

powers to create courts to the judicial branch. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IN RE OZENNE 3

COUNSEL

GaryLawrence Ozenne, Corona, California, pro se Appellant.

Jeffrey S. Allison and Eric D. Houser, Houser & Allison,

Irvine, California, for Appellees.

OPINION

WALLACE, Senior Circuit Judge:

Gary Ozenne appeals from the Ninth Circuit bankruptcy

appellate panel’s (BAP) denial of his petition for a writ of

mandamus. Because the BAP is not a “court[] established by

Act of Congress” under the All Writs Act, 28 U.S.C.

§1651(a), we hold that the BAP did not have jurisdiction to

consider the petition.

I.

Several years after his bankruptcy case was closed,

Ozenne filed a motion for sanctions in the bankruptcy court.

[Bankr. Ct. Dkt. No. 111] The bankruptcy court ruled that it

lacked jurisdiction to grant relief [Id. No. 119] and Ozenne

filed a petition for writ of mandamus before the BAP [BAP

Dkt. 1]. Relying on its previous decision In re Salter, 279

B.R. 278 (B.A.P. 9th Cir. 2002), the BAP held that it had

jurisdiction pursuant to 28 U.S.C. § 1651 to consider the

petition, and then denied the petition. [Id. No. 4] Ozenne

appealed from that denial. [Id. No. 6]
4 IN RE OZENNE

II.

Although the question of whether the BAP has

jurisdiction to address a petition for a writ of mandamus has

not been raised on appeal, we are “bound to consider

jurisdictional defects sua sponte.” United States v. S. Pac.

Transp. Co., 543 F.2d 676, 682 (9th Cir. 1976). The BAP

cited subsection (a) of the All Writs Act as the source of its

authority to decide a writ of mandamus. Subsection (a) states

that “[t]he Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the usages

and principles of law.” 28 U.S.C. § 1651(a).

The question therefore is whether the BAP is one of the

“courts established by Act of Congress.” We conclude that

the answer is no.

A.

The statute authorizing the BAP answers the question.

The BAP was not established by an “Act of Congress”;

rather, Congress gave the judicial council of each circuit

discretion to establish a bankruptcy appellate panel service.

The statute authorizing the creation of the BAP states that

[t]he judicial council of a circuit shall

establish a bankruptcy appellate panel service

composed of bankruptcy judges . . . appointed

by the judicial council . . . to hear and

determine, with the consent of all the parties,

appeals [from certain final judgments, orders,
IN RE OZENNE 5

and decrees of bankruptcy judges] unless the

judicial council finds that –

(A) there are insufficient judicial resources

available in the circuit; or

(B) establishment of such a service would

result in undue delay or increased cost to

parties in [bankruptcy cases].

28 U.S.C. § 158(b)(1). The statute does not simply mandate

that the judicial council establish a BAP. Instead, a circuit’s

judicial council may establish a BAP based on its assessment

of the judicial resources available in the circuit and whether

the service would cause undue delay or increased cost to the

parties. 28 U.S.C. § 158(b)(1)(A)–(B). In addition, the BAP

continues only so long as the Judicial Council of the Circuit

wishes it to. 28 U.S.C. § 158(b)(2). The BAP is, in effect, a

temporary panel to be used only so long as the judicial

council chooses to keep it operational. BAP membership is

also on a temporary basis, as it is staffed by bankruptcy

judges who serve by request, in addition to their assigned role

as bankruptcy judges. 28 U.S.C. § 158(b); Judicial Council of

the Ninth Circuit, “Amended Order Continuing the

Bankruptcy Appellate Panel of the Ninth Circuit” (effective

November 18, 1988; as amended May 4, 2010), pg. 3. It has

none of the permanency of a court.

Pursuant to congressional authorization, the Judicial

Council of the Ninth Circuit established a BAP and has

continued the BAP’s service from time to time since then. See

Judicial Council of the Ninth Circuit, “Amended Order

Continuing the Bankruptcy Appellate Panel of the Ninth

Circuit.” Because the BAP is a panel service established by
6 IN RE OZENNE

the Judicial Council of the Ninth Circuit, not a “court

established by Act of Congress,” it does not have writ power

under the All Writs Act.1Indeed, its “service” status is

demonstrated by the authority of the Judicial Council of the

Ninth Circuit to terminate the BAP at any time.

B.

The BAP itself previously concluded it had mandamus

power in In re Salter, but it was incorrect. In re Cardelucci,

285 F.3d 1231, 1234 (9th Cir. 2002) (concluding that “this

Court is not bound by a [BAP] decision”). In reaching its

conclusion, the BAP first considered various dictionary

definitions of the word “establish,” such as “‘[t]o set up on a

secure or permanent basis; to found,’” and “‘to bring into

existence.’” In re Salter, 279 B.R. at 281, quoting Oxford

English Dictionary Online and Webster’s New Collegiate

Dictionary 391 (1975). The BAP concluded that under such

definitions “Congress could be said to have ‘established’

BAPs . . . because BAPs did not exist until Congress provided

the authority for them.” Id.

Although the definitions used by the BAP do not differ

meaningfully from definitions in current legal sources, see,

e.g., Black’s Law Dictionary (10th ed. 2014) (defining

“establish” as “[t]o make or form; to bring about or into

existence”), the BAP’s application of these definitions

stretches the meaning of “established” too far, since under its

logic any tribunal whose existence is logically dependent in

1 Our dissenting colleague asserts the majority is willing to consider the

BAP a court. Not so. Congress knows full well how to the spell the word

“court” and we respect that difference and should interpret the meaning of

the statute as it has been written.
IN RE OZENNE 7

some way upon action by Congress (including any tribunal

that receives any kind of federal funding or authorization)

could be empowered under the All Writs Act. The most

obvious meaning of the phrase “established by Act of

Congress” is that it covers those entities directly created by a

Congressional Act, such as the United States Court of

Appeals for Veterans Claims. See Veterans for Common

Sense v. Shinseki, 678 F.3d 1013, 1022 (9th Cir. 2012) (“The

Veterans Court also has authority under the All Writs Act to

issue ‘writs necessaryor appropriate in aid of [its] jurisdiction

[ ].’”); cf. 38 U.S.C. § 7251 (“There is hereby established,

under Article I of the Constitution of the United States, a

court of record to be known as the United States Court of

Appeals for Veterans Claims”). The phrase may even be

broad enough to include entities created by a third party at the

express direction of Congress. Compare United States v.

Draughon, 42 C.M.R. 447 (1970) with Combest v. Bender, 43

C.M.R. 899 (1971).

However, a tribunal created by the independent actions,

choices, or judgment of a third party has not been

“established by Act of Congress,” even if authorization or

support from Congress was a logically necessary part of the

tribunal’s creation (such as a Judicial Council of the Circuit).

Thus, since the BAP was created by the Judicial Council of

the Ninth Circuit based on its own independent decision and

action, the BAP was not “established by Act of Congress”

even though a Congressional Act first suggested and

authorized its creation.

The BAP in In re Salter also reasoned that it possessed

writ power because the purpose of the All Writs Act was to

give federal courts the power to issue writs in aid of their

jurisdiction, and since “Congress . . . has given [the BAP]
8 IN RE OZENNE

general appellate powers over appeals from orders and

judgments of bankruptcy courts” and “[n]othing in 28 U.S.C.

§ 158 limits the powers implied from the fact of the BAPs’

creation as an appellate tribunal,” the BAP’s powers “must

include the traditional power to issue writs that aid in their

jurisdiction.” 279 B.R. at 282. This line of reasoning,

however, ignores the BAP’s limited jurisdiction.

The BAP could only exercise power under the All Writs

Act insofar as it is “in aid of” the BAP’s existing jurisdiction

because the All Writs Act does not confer an independent

source of jurisdiction. 28 U.S.C. § 1651(a); see, e.g., United

States v. Denedo, 556 U.S. 904, 914 (2009), citing Clinton v.

Goldsmith, 526 U.S. 529, 534–35 (1999) (“[T]he All Writs

Act and the extraordinary relief the statute authorizes are not

a source of subject-matter jurisdiction”).

The BAP’s jurisdiction is contingent upon parties’

consent. 28 U.S.C. § 158(b)(1) enshrines this consent

requirement, stating the BAP service will “hear and

determine, with the consent of all the parties, appeals” from

final judgments, orders, and decrees. Section 158(c)(1)

specifies how parties express their consent (or lack thereof)

to the BAP’s jurisdiction. While the default position is that

appeals from the bankruptcy court proceed to the BAP,

section 158(c)(1) provides both appellants and appellees the

opportunity to “opt-out” of having the BAP hear their case.

28 U.S.C. § 158(c)(1) states:

Subject to subsections (b) and (d)(2), each

appeal under subsection (a) shall be heard by

a 3-judge panel of the bankruptcy appellate

panel service established under subsection

(b)(1) unless—
IN RE OZENNE 9

(A) the appellant elects at the time of filing

the appeal; or

(B) any other party elects, not later than 30

days after service of notice of the appeal;

to have such appeal heard by the district court.

Under the statute, appellants can choose to have the district

court hear their appeal. Otherwise, when appellants appeal to

the BAP, a notice of appeal issues and a 30-day time period

is triggered in which appellees can choose to have the district

court hear the case.

Petitions brought under the All Writs Act, however, do

not require the consent of the opposing party, which would

allow one party to bring unilaterally its case before the BAP.

Petitions for writ of mandamus do not trigger a notice of

appeal and election period, and appellees, as a result, never

have the opportunity to elect to have the district court hear

their case.

The situation in this case is instructive. Here, Ozenne

failed to file a timely notice of appeal pursuant to Rule

8003(a) of the Federal Rules of Bankruptcy Procedure.

Ozenne’s failure to appeal the bankruptcy court’s decision

meant that the election period was never triggered, and the

defendant never had the opportunity to elect to have the

district court hear the case. Thus, the BAP’s decision to

review the petition for writ of mandamus, even though it was

ultimately denied, was not “in aid of” its jurisdiction.

Finally, the BAP reasoned that since the Court of

Criminal Appeals (formerly known as the Court of Military
10 IN RE OZENNE

Review) was created using similar statutory language to that

used in connection with the creation of the BAP, and since

the Court of Military Appeals concluded that the Court of

Criminal Appeals was a court created by Congress in

Dettinger v. United States, 7 M.J. 216, 219 (C.M.A. 1979),

the BAP should also be considered a court created by

Congress under the same reasoning. In re Salter, 279 B.R. at

282–83. However, the statutory language under which the

Court of Criminal Appeals was created differs significantly

from the statutory language under which the BAP was

created: the former states in relevant part that “[e]ach Judge

Advocate General shall establish a Court of Criminal

Appeals,” 10 U.S.C. § 866(a), while the latter states in

relevant part that “[t]he judicial council of a circuit shall

establish a bankruptcy appellate panel service . . . unless the

judicial council finds that: (A) there are insufficient judicial

resources available in the circuit; or (B) establishment of such

service would result in undue delay or increased cost to

parties in cases under title 11,” 28 U.S.C. § 158(b)(1)

(emphasis added). The former language allows a Judge

Advocate General no discretion in determining whether to

establish a Court of Criminal Appeals, lending credence to

the conclusion of the Court of Military Appeals that the All

Writs Act covers the Court of Criminal Appeals. In contrast,

a Judicial Council of the Circuit must decide whether to

establish a bankruptcy appellate panel service based on its

own assessment of judicial resources and costs. This

distinction makes all the difference in determining whether,

under the All Writs Act, a tribunal was established by

Congress itself—either directlyor bymandatorydelegation—

or instead by a third party (such as the Judicial Council of the

Circuit) at its own discretion. Moreover, it is clear that in the

former Congress was creating a permanent court with

permanent judges, while in the latter the panel services was
IN RE OZENNE 11

temporary, as the Judicial Council of the Circuit could

terminate the panel service at any time, and the judges were

not permanent but served for a limited time and served in

addition to the official assignment as a bankruptcy judge.

C.

The dissent contends that our opinion neuters the BAP.

The dissent ignores the BAP’s historically subordinate role

within the federal judiciary, and the constitutional issues that

would arise should the BAP be afforded power under the All

Writs Act.

While Congress may create certain federal tribunals

pursuant to its constitutionally delegated powers in Article I,

its authority to do so is not plenary. N. Pipeline Constr. Co.

v. Marathon Pipe Line Co., 458 U.S. 50, 63–64 (1982)

(plurality). Article III of the Constitution provides that “[t]he

judicial Power of the United States” shall be exercised by

judges who “hold their Offices during good Behaviour, and

shall, at stated Times, receive for their Services, a

Compensation, which shall not be diminished during their

Continuance in Office.” U.S. Const. art. III, § 1. Congress

cannot diminish the judicial branch’s power by granting

jurisdiction to Article Itribunals over cases that are within the

“judicial power of the United States” as described in Article

III, and, similarly, cannot “vest[] all ‘essential attributes’ of

the judicial power of the United States” in an adjunct court

shielded from proper review by an Article III court. N.

Pipeline, 458 U.S. at 63–64, 84–87 (plurality). To allow

Congress to do so undermines “the checks and balances . . .

built into the tripartite government,” as well as the “guarantee

that the process of adjudication itself remain[] impartial,”
12 IN RE OZENNE

because the federal judiciary would no longer “stand

independent” of the Legislature. Id. at 57–58 (plurality).

Guided by these principles, the Supreme Court in

Northern Pipeline struck down Congress’s broad grant of

authority to the bankruptcy courts under the Bankruptcy

Reform Act of 1978. Id. at 87 (plurality). The four-justice

plurality reasoned that bankruptcy courts under the 1978 Act

unconstitutionally exercised jurisdiction over cases within the

purview of Article III courts, and were not subject to

sufficient scrutiny by Article III courts. Id. at 83–87

(plurality). A full majority of the court, although failing to

agree on the scope of the “public rights” exception that allows

Congress to assign a narrow category of cases to Article I

legislative courts, concluded that the Act vested all “essential

attributes” of the judicial power in the bankruptcy courts, and

the courts were therefore not constitutionally acceptable

adjuncts. Id. at 69–71, 85–86 (plurality); see id. at 91

(Rehnquist, J., concurring).

In In re Burley, decided a few months after the Supreme

Court's decision in Northern Pipeline, our court addressed the

BAP's constitutionality in light of Northern Pipeline. 738

F.2d 981, 985–87 (9th Cir. 1984). Our court concluded that

the BAP, unlike the bankruptcy courts under the 1978 Act,

was constitutional. Id. at 985. In reaching that conclusion, our

court emphasized that the Article III court of appeals retained

the “essential attributes of the judicial power.” Id. at 985. Our

court retains that power because we can effectively review

the BAP's decisions de novo, have the authority to render

final decisions, and exercise "control over the BAP in that the

BAP can be established only by order of the circuit council."

Id.
IN RE OZENNE 13

After the decision in In re Burley, Congress passed two

more acts affecting the establishment of BAPs. In 1984

Congress passed the “Bankruptcy Amendments and Federal

Judgment Act of 1984,” Pub.L. No. 98-353S 104(a), 98 Stat.

341 (1984), followed by an amendment to the bankruptcy

appeals statute in 1994, 28 U.S.C. § 158.

28 U.S.C. § 158, while enabling the increased use of

BAPs among the circuits, still limits the BAP’s role within

the federal judiciary. Id.; Jonathan Remy Nash & Rafael I.

Pardo, An Empirical Investigation into Appellate Structure

and the Perceived Quality of Appellate Review, 61 VAND.

L.REV. 1745, 1757 (2008). Primarily, the 1994 amendments

did not erase each circuit’s discretion in establishing a BAP.

28 U.S.C. § 158(b)(1). Moreover, the BAP does not have

authority to hear bankruptcy appeals “unless the district

judges for the district in which the appeal[] occur[s], by

majority vote, have authorized [the BAP] to hear and

determine appeals originating in such district.” 28 U.S.C.

§ 158(b)(2)(6).

The BAP also does not retain its own permanent set of

judges. Instead, the BAP is staffed by a rotating set of

bankruptcy judges who are appointed at the behest of the

judges of the Court of Appeals of the United States for the

circuit in which the bankruptcy court is located, and removed

at the behest of the Judicial Council of the Circuit. 28 U.S.C.

§ 152(a), (e); Judicial Council of the Ninth Circuit,

“Amended Order Continuing the BankruptcyAppellate Panel

of the Ninth Circuit.” The rotating set of judges has narrow

jurisdiction to hear appeals from the bankruptcy court. Again,

the BAP only has jurisdiction to “hear and determine, with
14 IN RE OZENNE

the consent of all the parties, appeals” from final judgments,

orders, and decrees from the bankruptcy court. 28 U.S.C.

§ 158(b)(1).

The BAP’s limited jurisdiction is identified byCongress’s

treatment of the BAP as a “panel service.” 28 U.S.C.

§ 158(b)(1) (“The judicial council of a circuit shall establish

a bankruptcy appellate panel service. . . .”) (emphasis added).

While the dissent would have this court deviate from the

statute’s plain language and grant the BAP powers as though

Congress had established the BAP as something other than a

panel service, there is no reason to do so. Had Congress

intended for the BAP to exercise authority beyond its

prescribed role as a panel service, it would have provided for

it in the BAP’s authorizing statute. Compare 28 U.S.C.

§ 158(b)(1) with 10 U.S.C.A § 941 (“There is a court of

record known as the United States Court of Appeals for the

Armed Forces. The court is established under Article I of the

Constitution”), and 38 U.S.C.A. § 7251 (“There is hereby

established, under Article I of the Constitution of the United

States, a court of record to be known as the United States

Court of Appeals for Veterans Claims”), and 28 U.S.C. § 171

(“The president shall appoint. . . sixteen judges who shall

constitute a court of record known as the United States Court

of Federal Claims. The Court is declared to be a court

established under article I of the Constitution of the United

States”).

Our court, recognizing the BAP’s narrow jurisdiction, has

even concluded that the BAP’s decisions are not binding. In

re Silverman, 616 F.3d 1001, 1005 n. 1 (9th Cir. 2010)

(“[W]e treat the BAP's decisions as persuasive authority

given its special expertise in bankruptcy issues”) (emphasis

added); In re Cardelucci, 285 F.3d at 1234 (“[T]his Court is
IN RE OZENNE 15

not bound by a [BAP] decision”); Bank of Maui v. Estate

Analysis, Inc., 904 F.2d 470, 472 (9th Cir. 1990) (“[I]t must

be conceded that BAP decisions cannot bind the district

courts themselves. As article III courts, the district courts

must always be free to decline to follow BAP decisions and

to formulate their own rules within their jurisdiction”).

The BAP’s subordinate role within the federal judiciary

is pertinent to our decision. Supreme Court and our court’s

precedents emphasize that the BAP derives its legitimacy

from the overview exercised by Article III courts, as well as

the BAP’s inability to infringe upon “the essential attributes

of judicial power.” N. Pipeline, 458 U.S. at 86–87; In re

Burley, 783 F.2d at 785–87. Even though the barriers to

Article III review the BAP would create by having authority

under the All Writs Act “seem innocuous at first blush,” they

nevertheless “chip away at the authority of the Judicial

Branch.” Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011); see

also id., quoting Reid v. Covert, 354 U.S. 1, 39 (1957)

(plurality opinion) (“A statute may no more lawfully chip

away at the authority of the judicial branch than it may

eliminate it entirely. ‘Slight encroachments create new

boundaries from which legions of power can seek new

territory to capture’”). First, allowing the BAP to entertain

writs of mandamus would circumvent the consent

requirement in 28 U.S.C. § 158(c)(1), effectively preventing

a party from seeking review of the dispute by an Article III

district judge as allowed by statute. Second, such authority

would frustrate our court’s appellate review by putting in

place an extra procedural hurdle that respondents would have

to surmount in order to receive review. See Fed. R. App. P.

21; Ninth Circuit R. 27-1 “Advisory Committee Note”.
16 IN RE OZENNE

The dissent nevertheless contends that the constitutional

issue raised by our decision is Congress’s unconstitutional

delegation of authority to the judicial branch. The dissent

argues that by allowing the Judicial Council of the Ninth

Circuit established the BAP, Congress has impermissibly

delegated its court-making authority to the courts. First,

Congress did not delegate BAP establishment to the courts–it

was delegated to an administrative authority, the Judicial

Council of the Circuits. The dissent repeatedly misses this

important distinction. It argues Congress gave the power to

create the BAP to the court. But this argument is irrelevant.

Clearly, this was an administrative responsibility given to an

administrative part of our system: the Judicial Council of the

Circuits. Second, because it is a temporary entity existing at

the option of the Judicial Council of the Circuit, it does not

have the same function or power of a court–thus its name as

a “panel” created or disbanded by the Judicial Council of the

Circuit.

The Supreme Court, in addressing separation-of-powers

concerns in cases involving the judicial branch, has explained

that there are “two dangers: first, that the Judicial Branch

neither be assigned nor allowed tasks that are more properly

accomplished by [other] branches, and second, that no

provision of law impermissibly threatens the institutional

integrity of the Judicial Branch.” Mistretta v. United States,

488 U.S. 361, 383 (1989) (internal quotations and citations

omitted). Our decision does not raise either concern.

Congress has not simply delegated all court-making authority

to the judicial councils of each circuit. Rather, Congress has

allowed judicial councils to take stock of the needs within

their circuit, and, based on those conclusions, to establish a

panel service that is limited in both the subject matter it can

adjudicate and its authority to render final decisions. The
IN RE OZENNE 17

authorization continues only so long as the Judicial Council

of the Circuit on its own decides. 28 U.S.C. § 158(b)(2). The

Supreme Court has never held, nor has our court, that

Congress cannot authorize the judicial councils in each circuit

to establish a temporary panel service to adjudicate specific,

public rights, such as bankruptcy claims. See Stern, 131 S. Ct.

at 2609–11 (defining “public rights”).

III.

We therefore overrule In re Salter and hold that the BAP

is not a “court[] established by Act of Congress” under

subsection (a) of the All Writs Act, so it does not have

jurisdiction to entertain a mandamus petition. Our decision

does not leave parties without recourse to mandamus relief

from decisions by a bankruptcy judge, since subsection (a) of

the All Writs Act applies to federal district courts. Sec. &

Exch. Comm’n v. G. C. George Secs., Inc., 637 F.2d 685, 688

(9th Cir. 1981) (holding that “the district court . . . had the

authority to consider [petitioner’s] request for relief under the

All Writs Act,” and observing that “a district court’s powers

under § 1651 should be broadly construed” (internal

quotation marks omitted)).

We vacate the decision of the BAP and remand the case

with instructions to dismiss the petition for lack of

jurisdiction. Parties shall bear their own costs for the appeal. 

Fed. R. App. P. 34(a)(4).

VACATED AND REMANDED.
18 IN RE OZENNE

BYBEE, Circuit Judge, concurring in the judgment but

vigorously disagreeing with everything else:

The All Writs Act provides that “[t]he Supreme Court and

all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a). The majority holds that the

Bankruptcy Appellate Panel may not issue writs of

mandamus because it is not a “court[] established by Act of

Congress.” Maj. Op. at 17. Oh, the majority is willing, I

think, albeit begrudgingly, to admit that the BAP is a court;

it just doesn’t believe that it was “established directly by Act

of Congress.” That last sentence was, of course, a bit of a

cheat on my part: the statute doesn’t actually say that the

court must be “established directly” by Congress. But the

majority does. Maj. Op. at 4, 5–6. It has added a word to the

All Writs Act that is not there. And, for the reasons I will

explain, it is so unnecessary to do so, and it is going to cause

us major constitutional headaches.

I just can’t go there. I concur in the judgment only, and 

respectfully dissent otherwise.

I

I am going to start with an observation: even among flyspecks, this case is a nothing. We are dealing with the denial

of a writ of mandamus filed by a party with a penchant for

repeat (and likely frivolous) bankruptcy filings.1 And there

1 Ozenne filed some seven bankruptcy cases over the course of five

years.
IN RE OZENNE 19

are several ways we could and should have disposed of this

case. Here is what happened.

A. Procedural History

“The crux of Ozenne’s grievance is that his home was

sold out from under him in violation of the bankruptcy stay

provisions.” Accordingly, several years after his bankruptcy

case had been closed out, he sought to reopen it to seek

damages for alleged violations of the automatic stay, made in

connection with the sale of his home. In 2007, Ozenne filed

a motion in the bankruptcy court seeking to “set aside” the

bankruptcy court’s earlier ruling, which held that under Fed.

R. Civ. P. 60, Ozenne could not reopen his case. Ozenne’s

reason for reopening the bankruptcy case was his reason for

all the numerous motions he has filed: to seek “damages

under 11 U.S.C. § 362, which allows for damages for

violation of a bankruptcy stay.” The bankruptcy court denied

the motion for lack of jurisdiction, on account of Ozenne’s

bankruptcy case having been closed for several years at that

point. Ozenne appealed that decision to the federal district

court, which held that “[t]he bankruptcy court was correct to

reject Ozenne’s motion,” because it was untimely under Rule

60. Ozenne then filed a direct appeal to this court, and a

three-judge panel summarily affirmed.

At that point Ozenne filed a “”Motion for Sanctions [for]

Violations of 11 USC 362(a)” in the bankruptcy court. In that

motion, Ozenne argued that a “recent decision in the 10th

Circuit Court of Appeals has ruled that bankruptcy courts

retain jurisdiction to hear violations of 11 USC 362, even

after the underlying bankruptcy case has been dismissed.” In

other words, the motion sought the same thing Ozenne has

been seeking for years: to reopen his case to determine
20 IN RE OZENNE

whether his home was sold in violation of the automatic stay

and to collect damages for it. The bankruptcy court held it

had no jurisdiction to grant relief. Ozenne never filed a

notice of appeal. Again, another judgment became final.

Ozenne then filed a petition for a writ of mandamus with

the BAP. That petition sought an order from the BAP,

requiring the bankruptcy court to exercise jurisdiction and

hold “a trial or hearing for the violations of law under

11 USC 362.” The BAP’s docket shows that the petition

received no response from the appellees, and the BAP denied

it and closed the case out in a matter of eighteen days. In its

decision, the BAP noted its authority to entertain writs under

the All Writs Act, recited the standard for receiving such

relief, but summarily held that Ozenne “has not met the

burden to establish that a writ of mandamus should be

issued.” Ozenne is now before us on a timely filed pro se

appeal from that decision.

B. How the Majority Should Have Handled This

First, although not entirely free from doubt given

Ozenne’s pro se briefing, this case is likely res judicata. 

Ozenne has been doing the same thing for years. He admits

it. His own briefing notes that the bankruptcy court

“consistently ruled”, in “2003, 2007, [and] 2011,” that it

lacked jurisdiction to reopen Ozenne’s case and grant him

relief. I see no substantive difference between what Ozenne

asked the bankruptcy court to do in his 2007 motion and what

he asked it again in his 2011 motion. His 2007 motion ended

with a final judgment from this court affirming the district

court’s determination that Ozenne could not seek the relief he

sought—which happens to be the exact relief he sought in his

2011 motion in the bankruptcy court and his subsequent
IN RE OZENNE 21

mandamus petition before the BAP. Assuming that Ozenne’s

description is correct, he missed the time to file a notice of

appeal on the bankruptcy court’s denial of his motion. So

that determination became final. Indeed, the number of final

judgments telling Ozenne “no” is hard to count.2 His claims

strike me as being barred by res judicata.

Second, we might also reach the merits and simply affirm

because Ozenne has not even come close to showing that he

is entitled to a writ of mandamus. He cites a single BAP

case, In re Johnson, 346 B.R. 190 (9th Cir. BAP 2006), and

that’s it. Ozenne has not shown that his “right to the issuance

of the writ is clear and indisputable.” DeGeorge v. U.S. Dist.

Court for Cent. Dist. of Cal., 219 F.3d 930, 934 (9th Cir.

2000) (internal quotation marks omitted) (noting that in

granting or denying a writ, courts consider whether the

petitioner (1) “has no other adequate means, such as a direct

appeal, to attain the relief he or she desires,” (2) “will be

damaged or prejudiced in a way not correctable on appeal,”

(3) the “district court’s order is clearly erroneous as a matter

of law,” (4) the “district court’s order is an oft-repeated error,

or manifests a persistent disregard of the federal rules,” and

(5) the “district court’s order raises new and important

problems, or issues of law of first impression”). This is an

equally plausible grounds to affirm.

Finally, as the majority’s opinion suggests, the BAP may

have lacked jurisdiction. Maj. Op. at 8–9. The BAP’s

appellate jurisdiction is predicated on the consent of the

2 As the appellees have noted, Ozenne’s “unsuccessful appeals of the

underlying issues herein included appeals to the BAP, the District Court,

twice to the California Court of Appeals, the U.S. Supreme Court which

denied certiorari, and to this Honorable Court.”
22 IN RE OZENNE

parties before it. See 28 U.S.C. § 158. And the issuance of

a writ under the All Writs Act requires pre-existing

jurisdiction. See 28 U.S.C. § 1651 (granting power courts to

issue “all writs necessary or appropriate in aide of their

respective jurisdictions” (emphasis added)). But at worst, the

facts here suggest that we dismiss this case only because we

lack evidence of the appellees’ consent, and therefore the

BAP did not have jurisdiction to consider this particular writ,

not all writs in general. So under that view, we just dismiss

the appeal and all go home.

I would resolve this case on any one of the above bases,

and thus I concur in the judgment only, insofar as that

judgment is that Ozenne loses his case. But instead of

stopping with the most obvious answers to a most obviously

meaningless case, the majority forges ahead, without even

calling for briefing, and grinds an axe with which to cut the

BAP off at the knees. The majority opinion is needless,

wrong, and raises serious constitutional concerns with the

separation of powers.

II

The majority labors mightily to avoid making a

concession that, if you read carefully, it still winds up

making: the BAP is a court. And really, what else can the

majority do? The BAP is “composed of bankruptcy judges,”

28 U.S.C. § 158(b)(1), serving on a “3-judge panel,” id.

§ 158(c)(1). The panel “hear[s] and determine[s] . . .

appeals” from “final judgments, orders, and decrees” of

bankruptcy courts. Id. § 158(a)(1), (b)(1). And if not

appealed to us, the BAP’s decisions are final and have

preclusive effect. In re Scovis, 249 F.3d 975, 980 (9th Cir.

2001) (“The BAP renders a final order when it affirms or
IN RE OZENNE 23

reverses a bankruptcy court's final order.”). The majority

strains credulity when it says that the BAP “does not have the

same function or power of a court.” Maj. Op. at 16. Of

course it does. In its appellate function, the “bankruptcy

appellate panel . . . fill[s] the role of the [federal] district

courts.”3 Conn. Nat’l Bank v. Germain, 503 U.S. 249, 252

(1992); see also 28 U.S.C. § 158(a) (providing for appellate

jurisdiction of federal district courts over bankruptcy

decisions as an alternative to the BAP); Wellness Intern.

Network v. Sharif, 135 S. Ct. 1932, 1946 (2015) (“Congress

has supplemented the capacity of district courts through the

able assistance of bankruptcy judges.”); Northern Pipeline

Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 55 (1982)

(plurality opinion).

The majority scrupulously avoids addressing any of these

realities. Instead, like uttering “Bibbidi-Bobbidi-Boo” to turn

pumpkins into carriages, the majority believes that its own

incantation (“panelservice” and “tribunal”) will transform the

BAP into something other than a court. Ireadily concede that

§ 158 calls the BAP a “panel service.” But if the majority

believes the BAP is not a court, it never says so. Indeed, if

the majority really thought the BAP was not a court at all, it

could have written a much shorter opinion, because under the

All Writs Act only “courts . . . may issue all writs necessary

3 For instance, the majority says the BAP’s decisions are “not binding.” 

Maj. Op. at 14. Obviously they are not binding on Article III courts; but

that is beside the point. The ability to bind another court is not the

hallmark of a “court,” otherwise our federal district courts would not be

“courts,” as their decisions are similarly not binding. See Hart v.

Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001). What matters for

purposes of whether the BAP is a “court” is whether it issues judgments

that bind the parties. The majority’s response on this point is

conspicuously absent.
24 IN RE OZENNE

or appropriate.” 28 U.S.C. § 1651(a) (emphasis added). Had

the majority simply declared the BAP not a court, it could

have saved itself the gymnastics over the word “establish” in

§ 158.

I am skeptical that the absence of the magic word “court”

is significant here. Like the Tax Court—another Article I

court—the BAP’s “function and role in the federal judicial

scheme closely resemble those of the federal district courts,

which indisputably are ‘Courts of Law.’” Freytag v.

Comm’r, 501 U.S. 868, 891 (1991). The power the BAP

wields under § 158 is not that exercised by some mere

tribunal or administrative adjunct, like a special master or an

arbitrator. The BAP is an alternative to federal district courts

for parties appealing from the bankruptcy courts. 28 U.S.C.

§ 158(b)(1), (c)(1); see also Wellness, 135 S. Ct. at 1946;

Conn. Nat’l Bank, 503 U.S. at 252. By statute, appeals heard

by the BAP “shall be taken in the same manner as appeals in

civil proceedings generally are taken to the courts of

appeals.” 28 U.S.C. § 158(c)(2). Our own appellate

jurisdiction is the same whether the appeal originates in “the

bankruptcy court, the district court, or the bankruptcy

appellate panel.” 28 U.S.C. § 158(d)(2)(A). In all respects,

the BAP is treated by the statutes as equal in authority to the

district court and greater in authority to the bankruptcy court. 

See, e.g., id. § 158(d)(2)(B), (D); Pub. L. No. 109-8, Title

XII, § 1233(b)(3)(A), (5)(A), (6), 119 Stat. 23, cited in

28 U.S.C. § 158 note. The one noticeable difference between

these courts’ jurisdiction is that the consent of the parties is

required to establish BAP jurisdiction. But the majority

cannot, by its repeated references to the consent aspect of

BAP jurisdiction, seriously mean that the bankruptcy courts,

for example, cease to be “courts” when their Article III

jurisdiction to adjudicate non-core proceedings hinges on the
IN RE OZENNE 25

consent of the parties. See Wellness, 135 S. Ct. at 1944; cf.

Roell v. Withrow, 538 U.S. 580, 585–86 (2003) (noting the

consent-based civil jurisdiction of the United States

magistrate judges to dispose of cases and enter final

judgment). Is the majority suggesting, sub silentio, that the

bankruptcy courts are unconstitutional?

The majority similarly cannot dodge the fact that the BAP

is a court by telling us that it has “none of the permanency of

a court.” Maj. Op. at 5. “Permanency” as an attribute

inherent to a “court” is beyond me, in part because I do not

know what the majority means by “permanency.” Does it

mean populated by life tenured judges? If so, then Article I

courts are not courts. Does it mean constitutionally

permanent? If so, then only the Supreme Court is a court, see

U.S. Const. art. III, § 1; we don’t even count because we are

good only so long as Congress says so, see 28 U.S.C.

§§ 1291–1296 (establishing the jurisdiction of the courts of

appeals). The thing is, permanency is relative and tells us

little to nothing about whether a body is properly a “court.” 

The Temporary Emergency Court of Appeals was not

permanent and was not meant to be. See Economic

Stabilization Act Amendments of 1971, Pub. L. No. 92-210,

§ 211, 85 Stat. 743 (creating the TemporaryEmergencyCourt

of Appeals, to be populated by district and circuit judges

appointed at will by the Chief Justice); Act of October 29,

1992, Pub. L. No. 102-572, § 102, 106 Stat. 4506 (abolishing

the Temporary Emergency Court of Appeals). But it was a

court nevertheless. The same can be said of the original

Emergency Court of Appeals established during World War

II, see Emergency Price Control Act, Pub. L. No. 77-421,

§ 204, 56 Stat. 23, 31 (1942), and three-judge district courts

(which literally last for only the duration of a lawsuit), 

28 U.S.C. § 2284, and state courts with judges sitting pro tem,
26 IN RE OZENNE

see, e.g., Cal. Const. art. 6, § 21; Okla. Const. art. 7-A, § 6;

Ind. Code § 33-31-1-12; Kan. Stat. Ann. § 20-310a; Wash.

Rev. Code. § 2.08.180.

The point is, what you call an adjudicative body and how

long it exists are much less indicative of whether that body is

a “court” than what the body actually does and the powers it

possesses. By the latter standard, the BAP is a court.

III

The All Writs Act provides that “courts established by

Act of Congress” may issue appropriate writs, such as a writ

of mandamus. 28 U.S.C. §1651(a). When Congress provided

for bankruptcy appellate panels, it provided that “[t]he

judicial council of a circuit shall establish a bankruptcy

appellate panel service . . . unless the judicial council finds”

that the circuit has insufficient judicial resources or the

service would result in undue delay or increase the cost of

appeal to parties. Id. § 158(b)(1). The majority concludes

that because of the “unless” clause, Congress did not

“establish” the BAP and, accordingly, the BAP is not a “court

established by Act of Congress,” but “a tribunal created by

the independent actions, choices, or judgment of a third

party.” Maj. Op. at 7.

The text of § 158 and the All Writs Act should be

sufficient to decide this issue. The BAP is plainly a court

established by an Act of Congress. Section 158 authorizes us,

through our judicial council, to populate the BAP. The

flexibility Congress gave us not to populate the BAP if our

peculiar circumstances dictate otherwise does not affect the

fact that the court we appoint draws its existence from

congressional authorization and direction. Our choice to
IN RE OZENNE 27

effect or not to effect the panel authorized by Congress does

not change the fact that the court was created by “Act of

Congress.” And that is all that the All Writs Act demands. 

The BAP is a court created by an Act of Congress and may,

in cases where it otherwise has jurisdiction, issue writs under

the All Writs Act. See In re Salter, 279 B.R. 278, 280–81

(9th Cir. BAP 2002).

The majority, because of a vague concern that the

definition of “established” would open up the writ power to

“any tribunal that receives any kind of federal funding or

authorization,” Maj. Op. at 6–7, proceeds to graft a new

qualifier onto the All Writs Act—that the court be “directly”

established by Act of Congress, id. at 7, 10. I do not see that

word anywhere in the All Writs Act, and would accordingly

decline to write it into the statute. Moreover, the majority’s

concern is unfounded. “The All Writs Act . . . is not an

independent grant of appellate jurisdiction,” 16 Charles Alan

Wright et al., Federal Practice & Procedure § 3932, at 470 (2d

ed. 1996), but is instead auxiliary in nature in aiding courts to

exercise their already-existing jurisdiction. Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 175 (1803); see also In re

Previn, 204 F.2d 417, 418 (1st Cir. 1953). That means that

the jurisdiction of any court must be established and preexisting before it can issue an extraordinary writ. This, along

with the fact that only courts can use the All Writs Act, see

28 U.S.C. § 1651(a), diminishes any concern the majority

may be harboring about nameless federal tribunals using the

writ power.

Finally, the majority says its “decision does not leave

parties without recourse to mandamus relief from decisions

by a bankruptcy judge, since subsection (a) of the All Writs

Act applies to federal district courts.” Maj. Op. at 17. This
28 IN RE OZENNE

is hollow consolation indeed. Today’s ruling neuters the

BAP. Section 158 allows the parties to choose to have an

appeal heard in front of the BAP. See 28 U.S.C. § 158(b), (c),

(d). But buyer beware. The Supreme Court can issue writs

under the All Writs Act, 28 U.S.C. § 1651(a), and so can we,

see Cal. Energy Comm’n v. Johnson, 767 F.2d 631, 634 (9th

Cir. 1985), as can the district courts, SEC v. G.C. George

Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981), as can the

bankruptcy courts themselves, Nat’l Bank of Ark. v. Panther

Mountain Land Dev., LLC (In re Panther Mountain Land

Dev., LLC), 686 F.3d 916, 926 (8th Cir. 2012); Alderwoods

Group, Inc. v. Garcia, 682 F.3d 958, 972 n.24 (11th Cir.

2012); In re Johns-Manville Corp., 27 F.3d 48, 49 (2d Cir.

1994). But for reasons never fully explained by the majority,

Congress purportedly left the BAP out in the cold. Every

other court that can adjudicate the parties’ claims in a

bankruptcy case, except the BAP, can issue a writ in

furtherance of its already-existing jurisdiction to issue stays,

injunctions, and orders enforcing its own judgments. Under

the majority’s view, Congress has established, in Justice

Scalia’s memorable phrase, “a sort of junior-varsity [court],”

vested with some, but not all, of the ordinary powers of a

court. United States v. Mistretta, 488 U.S. 361, 427 (1989)

(Scalia, J., dissenting). I doubt the majority is correct.

IV

The majority’s opinion begs an answer to the following

question: if the BAP is not “a ‘court established by Act of

Congress,’” Maj. Op. at 5–6 (emphasis added), then who,

precisely, “established” this court?

If we accept the majority’s analysis, the BAP was

“established by the Judicial Council of the Ninth Circuit.” 
IN RE OZENNE 29

Maj. Op. at 5–6. This presents us with a second, far more

troubling question: Can Congress delegate its power to create

courts to the judicial branch? The majority says that the

answer is “yes,” and sees no problem. See Maj. Op. at 4

(“Congress gave the judicial council of each circuit discretion

to establish a bankruptcy appellate panel service.”); id. at 7

(concluding that “the BAP was created by the Judicial

Council of the Ninth Circuit” through an “authoriz[ation]”

from Congress). I am deeply skeptical of the constitutionality

of such an arrangement between Congress and the Judiciary.

First, we have no independent power under Article III to

create inferior courts. We are vested only with the “judicial

Power of the United States,” U.S. Const. art. III, § 1, and the

“judicial Power of the United States” does not encompass the

power to create other courts. It is the power to adjudicate

certain “Cases” and “Controversies” that arise between

adverse parties, “with such Exceptions, and under such

Regulations as the Congress shall make.” Id. art. III, § 2, cls.

1, 2; see also Muskrat v. United States, 219 U.S. 346, 356

(1911) (“Judicial power, . . . is the power of a court to decide

and pronounce a judgment and carry it into effect between

persons and parties who bring a case before it for decision.”

(internal quotation marks omitted)); Durousseau v. United

States, 10 U.S. (6 Cranch) 307, 314 (1810) (“The appellate

powers of the court . . . are given by the constitution. But

they are limited and regulated by the judicial [act], and by

such other acts as have been passed on the subject.”). By

contrast, Articles I and III expressly grant the power to

establish courts to Congress. U.S. Const. art. I, § 8, cl. 9

(“The Congress shall have Power . . . To constitute Tribunals

inferior to the supreme Court.”); id. art. III, § 1 (“The judicial

Power of the United States, shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from
30 IN RE OZENNE

time to time ordain and establish.”). The distinction between,

and classification of, Article III and Article I courts—also

denominated “constitutional” and “legislative” courts—“has

been productive of much confusion and controversy.” 

Glidden Co. v. Zdanok, 370 U.S. 530, 534 (1962) (plurality

opinion). But whateverthe constitutional disconnect between

those two systems of courts, we have no power to establish a

bankruptcy court.4

4 There is, to take the example at hand, more than a little confusion over

the constitutional source of Congress’s power to establish the bankruptcy

courts. There are at least three theories, all of which have been rejected

by at least some part of the Court. First, some have argued that Congress

may rely on Article I to establish “Tribunals inferior to the Supreme

Court.” U.S. Const. art I, § 8, cl. 9. But a plurality of the Court has said

that this provision “plainly relates to the ‘inferior Courts’ provided for in

Art. III, § 1; it has never been relied on for establishment of any other

tribunals.” Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality

opinion). Second, others have argued that Congress derives its authority

from the power to “establish . . . uniform Laws on the subject of

Bankruptcies.” U.S. Const. art. I, § 8, cl. 4. However, a plurality of the

Supreme Court may have rejected that clause as a source of power for

creating bankruptcy courts, though it has notsquarely addressed the issue. 

Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 72–74

(1982) (plurality opinion). But see Wellness Int’l Network, LTD. v. Sharif,

135 S. Ct. 1932, 1970 n.7 (Thomas, J., dissenting) (noting that the

Northern Pipeline plurality was “considering whether Article III imposes

limits on Congress’ bankruptcy power,” not “whether Congress has the

power to establish bankruptcy courts as an antecedent matter”). Third, the

Court has denied that Congress can establish bankruptcy courts as an

“adjunct” to Article III courts, presumably relying on some combination

of Article III, § 1, and the Necessary and Proper Clause, Article I, § 8, cl.

18. See Stern v. Marshall, 131 S. Ct. 2594, 2619 (2011) (noting

bankruptcy judges’ ability to enter final judgments and concluding that

“[g]iven that authority, a bankruptcy court can no more be deemed a mere

‘adjunct’ of the district court than a district court can be deemed such an

‘adjunct’ of the court of appeals.”); see also Northern Pipeline, 458 U.S.

at 76–87 (plurality opinion).
IN RE OZENNE 31

In response, the majority criticizes my premise. It

concludes that “Congress did not delegate BAP establishment

to the courts—it was delegated to an administrative authority,

the Judicial Council of the Circuits.” Maj. Op. at 16. In

separation-of-powers terms, this is not an “important

distinction,” id.; it is a distinction without a difference. The

Supreme Court has made abundantly clear that its separation

of powers “approach” does not differ as applied to

“nonadjudicatory activities that Congress has vested either in

federal courts or in auxiliary bodies within the Judicial

Branch.” Mistretta, 488 U.S. at 388 (emphasis added). If the

majority wants to argue that the Judicial Council is not

located in the Judicial Branch, it is paddling upstream.

The second problem with the delegation of power the

majority assumes is that it is unprecedented. To my

knowledge, there is no instance of Congress delegating its

court-making power to the courts; we have been afforded

other powers, but not the power to establish courts. Through

the Rules Enabling Act, 28 U.S.C. §§ 2071–77, Congress has

delegated to us rule-making authority over “the practice and

procedure of federal courts.” Sibbach v. Wilson, 312 U.S. 1,

9–10 (1941) (holding that Congress has the “undoubted

power” to delegate that authority); Wayman v. Southard,

23 U.S. (10 Wheat) 1, 43 (1825) (noting that rule-making

authority with respect to judicial proceedings may be

“conferred on the judicial department” by Congress). Those

rules, however, “may not expand or diminish the jurisdiction

conferred by Congress.” United States v. Jacobo Castillo,

We need not wade into this morass. It is sufficient to note that,

whatever the source (or not) of Congress’s authority to establish

bankruptcy courts, the Constitution does not vest any such authority in the

judiciary.
32 IN RE OZENNE

496 F.3d 947, 954 (9th Cir. 2007) (en banc). Nor may we

draw on our authority to appoint bankruptcy judges as the

source of power for establishing a bankruptcyappellate panel. 

Our power to appoint “inferior Officers” is conferred by

Article II and authorized by statute. U.S. Const. art. II, § 2,

cl. 2; 28 U.S.C. § 152(a)(1). Accordingly, we can only

appoint such officers to existing offices, statutorily created by

Congress. See Edmond v. United States, 520 U.S. 651, 660

(1997) (noting that the Appointments Clause permits

Congress to vest the appointment power for inferior officers

in the courts “by Law” (quoting U.S. Const. art. II, § 2, cl. 2)

(emphasis added)). To take an even a more extreme example,

the Court approved the delegation involved in the power to

issue the Sentencing Guidelines by reference to our historical

involvement in the discretion-laden field of criminal

sentencing. See Mistretta, 488 U.S. at 390 (noting, in order

to justify the location of the Sentencing Commission within

the Judicial Branch, that “the sentencing function long has

been a peculiarly shared responsibility among the Branches

of Government” and that for “more than a century, federal

judges have enjoyed wide discretion” in sentencing). But

there is no history of courts making other courts. And while

novelty is not a death knell, it is no ringing endorsement of

constitutionality either. See Free Enter. Fund v. Public Co.

Accounting Oversight Bd. (PCAOB), 561 U.S. 477, 505

(2010) (“Perhaps the most telling indication of the severe

constitutional problem with the PCAOB is the lack of

historical precedent for this entity.” (internal quotation marks

omitted)).

Third, even if I thought Congress had delegated its

authority to establish courts to us, we could not accept the

delegation. The Supreme Court has held that Congress may

delegate “extrajudicial activities” to the Judiciary only if the
IN RE OZENNE 33

delegated task has a “close relation to the central mission of

the Judicial Branch,” is not a “task[] . . . more properly

accomplished by [other] branches,” and does “not trench

upon the prerogatives of another Branch.” Mistretta,

488 U.S. at 388, 389–90 (quoting Morrison v. Olson,

487 U.S. 654, 680–81 (1988)). I am unpersuaded these

requirements would be met by a congressional delegation of

court-making power to the Judiciary. To begin with, I fail to

appreciate how court-creation has a “close relation to the

central mission of the Judicial Branch.” Our mission is to

interpret the law in resolving disputes between parties, not to

enlarge the superstructure of government. The gap between

promulgating rules of procedure, appointing Article I judges,

or propounding sentencing guidelines applicable in judicial

proceedings on the one hand, and creating new tribunals that

possess the power to issue final judgments on the other hand,

is as obvious as it is wide. Moreover, there are plenty of

reasons to conclude that creating courts is “more properly

accomplished” by Congress, and that we “trench upon”

Congress’s prerogatives in this case by reading § 158 as

delegating to the Judiciary the power to establish the BAP. 

The separation of powers under our Constitution prohibits

one branch from usurping the powers of another or giving

away its power to check another Branch. United States v.

Nixon, 418 U.S. 683, 704 (1974) (“[T]he ‘judicial Power of

the United States’ . . . can no more be shared with the

Executive Branch than the Chief Executive, for example, can

share with the Judiciary the veto power, or the Congress share

with the Judiciary the power to override a Presidential

veto.”); see also Stern v. Marshall, 131 S. Ct. 2594, 2611–15

(2011) (permitting Article I bankruptcy courts to adjudicate

defamation claims violated separation of powers); PCAOB,

561 U.S. at 497 (dual-layer of for-cause protection over

agency board members violated separation of powers);
34 IN RE OZENNE

Clinton v. City of New York, 524 U.S. 417, 435–49 (1998)

(line-item veto); Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 225–26 (1995) (statute revising final judgment made by

Article III courts); Bowsher v. Synar, 478 U.S. 714, 732–34

(1986) (placing executive power in official removable only

by Congress); INS v. Chadha, 462 U.S. 919, 954–59 (1983)

(congressional override of executive execution of the law);

Northern Pipeline, 458 U.S. at 63–76 (plurality opinion)

(placement of judicial power over private rights outside of

Article III courts); Buckley v. Valeo, 424 U.S. 1, 126–29

(1976) (giving appointment power to Speaker of the House

and president pro tem of the Senate).

As I previously explained, the jurisdiction and existence

of both Article I and III lower courts depends “entirely on

statutory grants from Congress.” Evans v. Thompson,

518 F.3d 1, 5 (1st. Cir. 2008); see also Printz v. United States,

521 U.S. 898, 907 (1997) (“In accord with the so-called

Madisonian Compromise, Article III, § 1, established only a

Supreme Court, and made the creation of lower federal courts

optional with the Congress—even though it was obvious that

the Supreme Court alone could not hear all federal cases

throughout the United States.”); Palmore v. United States,

411 U.S. 389, 400–01 (1973) (“The decision with respect to

inferior federal courts, as well as the task of defining their

jurisdiction, was left to the discretion of Congress.”); Cary v.

Curtis, 44 U.S. (3 How.) 236, 245 (1845) (“[Congress]

possess[es] the sole power of creating the tribunals (inferior

to the Supreme Court) for the exercise of judicial power . . .

and of withholding jurisdiction from them in the exact

degrees and character which to Congress may seem proper

for the public good.”). In my view, this places Congress’s

Article I and III court-creating powers on a special plane in

separation of powers terms: The power to create inferior
IN RE OZENNE 35

courts and define their jurisdiction is perhaps the principal

check that Congress possesses over the judiciary. Congress

may not delegate that power outside of itself, and it is no

answer that the judiciary is complicit in its exercise. PCAOB,

561 U.S. at 497 (“[T]he separation of powers does not depend

. . . on whether ‘the encroached-upon branch approves the

encroachment[.]’” (quoting New York v. United States,

505 U.S. 144, 182 (1992)); Wellness, 135 S. Ct. at 1955

(Roberts, C.J., dissenting) (“A branch’s consent to a

diminution of its constitutional powers . . . does not mitigate

the harm or cure the wrong.”).

The majority responds with a non sequitur, contending

my approach “ignores the BAP’s historically subordinate role

within the federal judiciary.” Maj. Op. at 11. Not so. I agree

that the bankruptcy courts (including the BAP, which is a

court) “derive[] [their] legitimacy from the overview

exercised by Article III courts.” Maj. Op. at 15. But I do not

see how Congress’s decision to permit the BAP to use the

writ power “chip[s] away at the authority of the Judicial

Branch.” Maj. Op. at 15. Does the majority really believe

that Congress could not amend the All Writs Act to include

the BAP by name without offending Article III?

Surprisingly, the majority has expressed no concern with

bankruptcy courts invoking the All Writs Act. Surely they

are “courts” established by act of Congress. See Panther

Mountain, 686 F.3d at 926 (holding that bankruptcy courts

can issue writs under the All Writs Act); Alderwoods Group,

682 F.3d at 972 n.24 (same); In re Johns-Manville Corp.,

27 F.3d at 49 (same). But perhaps not under the majority’s

ruling. And to the extent the majority is concerned about

“frustrat[ing] our court’s appellate review” of BAP decisions,

Maj. Op. at 15, the majority needs reminding that it is

vacating the BAP’s order. There is little more that could
36 IN RE OZENNE

demonstrate that the BAP remains “subordinate” to us. Maj.

Op. at 11.

I do not purport to solve these interesting constitutional

quandaries raised by the majority’s opinion. But the

majority’s opinion is a problem. And the questions are both

squarely raised and, unfortunately, entirely avoidable. We

can and should avoid rendering a decision that radiates with

such constitutional difficulty.

V

It is a basic tenet of both statutory interpretation and

constitutional law that “where an otherwise acceptable

construction of a statute would raise serious constitutional

problems,” we must “construe the statute to avoid such

problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trade Council, 485 U.S. 568, 575 (1988). 

This principle alone would counsel against the majority’s

construction of the All Writs Act. But the constitutional

avoidance canon only applies when there are two plausible

readings of a statute. McFadden v. United States, 135 S. Ct.

2298, 2307 (2015). “It has no application in the interpretation

of an unambiguous statute such as this one.” Id. (internal

quotation marks omitted). There is no reason to read into the

All Writs Act the word “directly.” Congress established

bankruptcy appellate panels, and authorized us to adapt them

to our needs. When Congress established the BAP it

necessarily authorized the BAP to “issue all writs necessary

or appropriate in aid of [its] respective jurisdiction[] and

agreeable to the usages and principles of law.” 28 U.S.C.

§ 1651(a).

I respectfully, but emphatically, dissent.