F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

I N R E G A R Y L A W R E N C E O Z E

N N E , Debtor

,

G A R Y L A W R E N C E O Z E

N N E , Appellant

,

v

.

C H A S E M A

N H A T T A N B A N K ; O C W

E N L O A N S E R V I C I N G ; O C W

E N F E D E R

A L B A N K F SB
, A ppellees

. N o. 11-60039

B AP No. 11-1208

OPI NI ON

Appeal from the Ninth Circuit B ankruptcy

Appellate Panel Kirscher, Markell, and Dunn, B ankruptcy J udg es, Presiding

Submitted December 9, 2014 * San F rancisco, California

F iled March 25, 2016

B efore: J . Clifford W allace, Edward L eavy , and J ay S. B y bee, Circuit J udg es.

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).I N R E O Z E N N E 2

Opinion by J udg e W a llace; Partial Concurrence and Partial Dissent by J udg e B y bee

SUMMARY * *

Bankruptcy

V acating the bankruptcy appellate panel’s (B A P) denia l of a petition for a writ of mandamus, the court of appeals h eld that the B A P did not have jurisdiction to consider the mandamus petition.

The c ourt held that the B AP lacked jurisdiction u nder the A l l W rits Act because the B AP, which is established b y th e circuit judicial council pursuant to 2 8 U.S.C. § 158(b)(1), is not one of the “courts established by Act of Cong ress.”

Concurring in the judg ment only

, a n d dissenting otherwise, J udg e B y

bee wrote that the All W rits Act does not require that a c ourt be established directly by Cong ress. He
wrote that the majorit y ’s o pinion r aises constitutional
p r o blems because he doubts that Cong ress can deleg ate its powers to create courts to the judicial branch.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.I N R E O Z E N N E 3

COUNSEL

Gary L a wrence Oz enne, Corona, C a l i f ornia, pro se Appellant.

J effrey S. Allison and Eric D. Houser, Houser & Allis o n , I rvine, California, for Appellees.

OP INION

W A L L ACE, Senior Circuit J udg e:

Gary O z e nne appeals from the Ninth Circuit bankruptcy appellate panel’s ( BA P ) d e n ial of his petition for a writ o f mandamus. B ecause the B AP is not a “court[ ] established b y Act of Cong r ess” under the A ll W rits Act, 2 8 U

. S.C. § 1 6 51(a), we hold that the B AP did n o t have jurisdictio n t o consider the petition.

I

.

Several y ears afte r his bankruptcy case was closed, Oz enne filed a motion for sanctions in the bankruptcy court. [Bankr. Ct. Dkt. No. 111] The bankruptcy court ruled that it lacked jurisdiction to gr a n t r elief [ Id. No. 119] and Oz enne filed a petition for writ of mandamus b efore the B AP [BAP Dkt. 1]

. Rely ing o n its p revious d ecision I n re S alter

, 279 B .R. 278 (B .A.P. 9th Cir. 2002), the B AP held that it h a d j u risdiction pursuant to 28 U .S.C. § 1 6 51 to consider t h e petition, and then denied the petit ion. [ Id. No. 4] Oz enne appealed from that denial. [ Id. No. 6]I N R E O Z E N N E 4

I I

.

A lthoug h the question of whether the B AP h a s jurisdiction to address a petition for a writ of mandamus has
not been rais ed on appeal, we are “ bound to consider jurisdictional d efects sua sponte.” United States v. S

. Pac. Transp. Co.
, 543 F .2d 676, 682 (9th C i r

. 1 9 7 6). T h e B AP cited subsection (a) o f the All W rits A c t a s the source of its authority to decide a writ of mandamus. Subsection (a) states that “[ t] he Supreme Court and all courts e stablished by Act o f Cong r ess may issue all writ s n e c essary or appropriate in aid of their r espective jurisdictions and ag r e e a b l e to the usag e s and principles of law.” 28 U.S.C. § 1651(a).

The q uestion therefore i s w h ether the B AP is one of the “courts established by Act of Cong r e s s

. ” W e conclude that the answer is no.

A.

The statute authori z i n g the B AP answers the question. The B AP w as not established by an “Act of Co n gr ess”; rather, Cong r ess g ave the judicial c o u n cil of each circuit discretion to establish a bankruptcy appellate panel service.

The statute authoriz ing the creation o f the B AP states that

[ t] he judicial co uncil of a circuit shall establish a bankruptcy a

ppellate panel service composed of b ankruptcy judg es

. . . appointed by the j u d i cial council

. . . to hear a nd determine, with the consent of all the parties, appeals [ from certain final judg ments, orders,I N R E O Z E N N E 5

and decrees of bankru p tcy judg e s] unless the judicial council finds that –

(A) there a

r e insufficient judic ial resources available in the circuit; or

(B ) establishment of such a service would result in un d ue delay or increased cost to parties in [ b ankruptcy

cases]

.

28 U.S.C. § 158(b)(1). The statute does not sim p l y mandate that the judicial council e s t ablish a B AP. I nstead, a circuit’s judicial c ouncil may establish a B AP based on its a ssessment of the judicial resources available in the cir c u i t and whether the service would cause undue delay or increased c ost to the parties. 28 U.S.C. § 158(b)(1)(A)–(B ). I n addition, the B AP continues only so long as the J udicial Council of the Circuit

w i s h es it to. 28 U.S.C. § 158(b)(2). The B AP is, in effect, a temporary p anel to be u sed only so long as t h e judicial council chooses to keep it operational. BA P m embership is also on a temporary basis, as it is staf f e d by bankruptcy judg es who serve by request, in addition to their assig ned role

as b ankruptcy judg es. 28 U.S.C. § 158(b); J udicial Council o f the Ninth Circuit, “ A m ended O rder Continuing the B ankruptcy A ppellate Pan e l of the Ninth Circuit” (effective November 1 8, 1988; as amended May 4, 2010), pg . 3. I t has none of the permanency

of a court.

Pursuant to cong ressional authoriz atio n , the J udicial Council of the N i n t h C i rcuit established a B AP a nd has continued the B AP’s service from time to time since then. See J udicial Council of the N inth Circuit, “Amended Order Continuing the B ankruptcy Appellate P anel of the Ninth C ircuit.” B e cause the B AP is a panel service established b yI N R E O Z E N N E 6

the J u d i c i al Council of the Ninth Circuit, not a “court established by Act of Cong ress,” it does not h ave writ power under the A ll W rits A ct. 1 I nd ee d

, its “service” status is de m o nstrated by the authority of the J udicial Council of the Ninth Circuit to terminate the B AP at any time.

B

.

The B AP itself previously concluded it had man d amus power in I

n re Salte r , but it was incorrect. In re Cardelucci

, 285 F .3d 1231, 1234 (9th Cir. 2002) (concluding t h at “this Court is not bound b y a [ B AP] d ecision”). I n reaching its conclusion, the B AP first considered various dictionary definitions of the word “establish,” such as “ ‘[ t] o set up on a

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

ex istence.’” In re Salter

, 2 79 B .R. at 281
, q u o ting Ox ford Eng lish Dictionary Online and W ebster’s New Colleg iate Dictionary 391 (1975). The B A P concluded that under such definitions “Cong ress could b e said to h ave ‘established’ B APs

. . . because B APs d id not ex ist until Cong ress provided the authority

for them.” Id.

Althoug h the d efiniti o n s u s e d by the B AP do not differ meaning fully from defi n i tions in current leg al sources, see, e.g. , B lack’s L a

w D ictionary (10th e d. 2014) (defining “establish” as “[ t] o make or f orm; to bring a b o u t o r into

ex istence”), the B AP’s a pplication of these definitions stretches the meaning of “ established” too far, since under its log ic any tribunal whose ex istence is log ically dependent in

1 O u r d issen tin g co lleag u e asserts th e m aj ority is w illin g to co n sid er th e B A P a co u rt. No t so

. Co n g ress k n o w s f u l l w ell h o w to th e sp ell th e w o rd

“ co u rt” an d w e resp ect t

h at d if f eren ce an d sh o u ld in terp ret th e m ean in g of th e statu te as it h as b een w ritten

.I N R E O Z E N N E 7

some way upon action by Cong ress (includi n g any tribunal that receives any kind of f ederal f u n ding or authoriz a tion) could be empowered under the All W rits Act. T h e most ob v i o u s meaning of the phrase “established by A ct o f Cong r ess” is that it covers those entities directly created by a Cong r essional Act, such as the United State s Court o f Appeals f

or Veterans Claims. S

ee Ve terans for Common Sense v. S hinseki

, 678 F .3d 1 0 13, 1022 ( 9 th Cir. 2012) (“The Veterans Court also has authority under the All W rits Act to issue ‘ writs necessary o r a ppropriate in aid of [ its] jurisdiction [ ]

. ’”); c f. 38 U.S.C. § 72 5 1 ( “ T h e re is hereby established, unde r A r t i c l e I of the Constitution of the United States, a court of record to be k

nown a s t h e United States Court o f Appeals f

o r V e t erans Claims”). The phrase may even be broad e noug h to include entities created by a third party at the

ex p ress direction of Cong re s s

. C ompare United States v

. Draughon

, 42 C.M.R. 4 47 (1970) with Combest v. Bender

, 43 C.M.R. 899 (1971).

However, a tribunal created by the independent a ctions, choices, or judg m e nt of a third party has not been “established by Act of Cong ress,” even if authoriz ation o r support from Cong ress was a lo g i cally necessary part of the tribunal’s creation (such as a J udicial Council o f the Circuit). Thus, since the B AP was created b y the J udicial Council o f the Ninth Circuit based on its own independent decision a nd action, t h e BA P was not “established by Act of Cong ress”

even thoug h a Cong ressional Act f irst s u g g ested a

nd authoriz ed its creation.

The B A P in In re Salter also r easoned that it p o s sessed writ p ower because the pur p o s e o f the A ll W rits Act was to g ive federal c ourts the power to issu e w r i t s in aid of their jurisdiction, and since “Cong ress

. . . has g iven [the BA P]I N R E O Z E N N E 8

ge n eral appellate powers over a ppeals from orders a n d judg ments of bankruptcy courts” and “[ n] othing in 28 U .S.C. § 158 limits the powers implied from the f act of the B APs’

c r e ation as an appellate tribunal,” the B AP’s powers “ m u s t inc l u de the traditional power to issue writs that a id in their jurisdiction.” 279 B .R. at 282. This line of reasoning

, however, ig n ores the B AP’s limited jurisdiction.

The B AP could only ex ercise power under the All W rits Act insofar as it is “in aid of” the B AP’s ex isting jurisdiction because the All W r i t s Act does not c onfer 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, 5 3 4

– 35 (1999) (“[ T] he All Writs Act and the e x traordinary relief the statute authoriz es are not a source of subject-matter jurisdiction”).

The B AP’s jurisdiction is conting ent upon parties’
consent. 28 U.S.C. § 158(b)(1) enshrines this consent requirement, stating the B AP service w ill “hear a nd determine, with the c onsent o f all the p a r t ies, appeals” from fi n a l judg ments, orders, and d ecrees. Section 158(c)(1) specifies how parties ex pr e s s their c onsent (or lack thereof)
to the B AP’s jurisd i c t i o n

. W hile the d efault position is that appeals from the b ankruptcy court proceed to the B AP, section 158(c)(1) provides both appellants and appellees the opportunity to “opt-out” of having the B AP hear their c ase. 28 U.S.C. § 158(c)(1) states:

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

, e ach appeal under subsection (a) shall be h eard b y

a 3-judge panel o f the b ankruptcy appellate panel service established under subsection (b)(1) unless—I N R E O Z E N N E 9

(A) the appellant ele c t s at the time of filing the appeal; or

(B ) any other party elects, not l a ter than 30 day s after service of notice of the appeal;

to have such a

ppeal heard by the district court.

Un d e r the statute, appellants can choose to h ave the district
court hear their appeal. Otherwise, when appellants appeal to the B AP
, a n o t ice of appeal issues and a 30-day time period is trig g ered in w hich a

ppellees can choose to have the district court hear the case.

Petitions broug ht u n d e r the All W rits Act, however, do
not require the consent o f the opposing pa rty , which would allow o ne party to bring u nilaterally its case before the B AP. Petitions for w rit of mandamus d o not t rig g er a notice o f appeal and election p eriod, and appellees, as a result

, n ever have the o pportunity to e lect to have the distr i c t c o u rt hear their case.

The sit u a t i o n in this case is instructive. Here, Oz enne failed to file a timely notice of appeal pu r s u a n t to Rule 8003(a) of the F ederal Rules of B ankruptcy Procedure. Oz enne’s failure to appeal the b a nkruptcy court’s decision
meant that the election period was never trig g ered, a nd the defendant n ev e r had the opportunity to elect to have the district court hear the c ase. Thus, the B A P’s de c i s i o n to review the petition for w rit of mandamus, even thoug h it was ultimately

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

Fi n a lly

, the B AP reasoned that since the Court o f Criminal Appeals (formerly known as the Court of Mili taryI N R E O Z E N N E 10

Review) was created using similar statutory lang uag e to that

u s e d in c onnection with the creation of the B AP, and sin c e the Court o f Military A p p e al s concluded that the Court o f Criminal Appeals was a court created by Cong ress in Dettinger v. United States
, 7 M.J

. 216, 219 (C.M.A. 1 9 7 9), the B AP should also b e c o nsidered a court created b y Cong r ess under the same reasoning

. In re Salter

, 279 B .R. at 282–83. However, the statutory lang u ag e un d e r w hich the Court o f Crim i n a l Appeals was created differs sig nificantly from the s t atutory lang uag e under which the B AP was created: th e f

o rmer states in relevant part that “[ e] a ch J udg e Advocate General shall establish a Cou rt o f Criminal Appeals,” 10 U.S.C. § 866(a), w hile the latter states in relevant part that “[ t] h e ju d i c i al council of a circuit shall establish a bankruptcy

appellate panel service .

. . unless the j u d i c ial council finds that: (A) there are insufficient judici al

resources available in the circuit; or (B ) establishment of such service would result in undue delay o r i n c r eased c ost to parties in cases under title 11,” 28 U.S.C

. § 1 5 8(b)(1) (emphasis added). T he f o r m e r lang uag e a llows a J udg e Advocate General no discretion in determining w h e ther to establish a Court of Criminal Appeal s, lending credence to the conclusion of the Court o f M i litary Appeals that the All W r its Act c overs the Court of Criminal A ppeals. I n contrast,

a J udicial Council of the Circuit must decide whether to establish a bankruptcy appellate panel service based on its

own assessment of judicial r esources and costs. This di s tinction makes a ll the difference in determining w hether, under the A ll W r its A ct, a tribunal was established b y Cong r ess i t s e l f

— e i ther directly or b y mandatory deleg ation—

or instead by a third party (such as the J udicial Council of the Circuit) at its o wn discretion. Moreover, it is clear that in the f ormer Cong ress was creating a permanent c ourt with permanent judg es, while in the l atter the panel services wasI N R E O Z E N N E 11

tempora r y , as the J udicial Council of the Circuit could terminate th e p a n e l service a t any time, and the judg es were not permanent but serv e d f o r a limited time and served in addition to the official assig nment as a bankruptcy judg e.

C.

The dissent contends tha t o ur opinion neuters the B AP. The dissent i g nores the B A P’s historically subordinate role within the f

ederal judiciary

, and the constitutional issues that would arise should the B AP be afforded power under the All W r its Act.

W h ile Con g ress may create certain federal tribunals pursuant to its constitutionally deleg ated powers in Article I
, its authority to do so is no t plenary

. N. Pipeline Constr. Co.

v. Marathon Pipe Line Co
., 458 U.S. 50, 6 3 –64 (1982) (plurality ). Article I I I of the Constitution provides that “[ t] he judicial Power of the United States” sh a l l be ex ercised b y judg es who “ hold their Offices during go o d B ehaviour, a nd shall, at stated Ti m e s , receive for their Services, a Compensation, which shall not be diminished duri n g their Continuance in Office.” U.S. C o n s t

. art. I I I
, § 1. Cong ress cannot dimin i s h the judicial branch’s power by g ranting jurisdiction to Article I tribunals o ver cases that are within the “judicial power of the United States” as described in Article I I I
, and, similarly

, cannot “vest[ ] a ll ‘essent i a l a t tributes’ o f th e j u d i c ial p ower of the United States” in an adjunct court shielded from proper r eview by an Article I I I c ourt. N. Pipeline

, 458 U. S

. a t 63–64, 84–87 ( plurality). To allow Cong r ess to do so undermines “the checks a nd balances

. . . built into the tripartite g overnment,” as well as the “g uarantee that the process of adjudication itse l f remain[ ] impartial,”I N R E O Z E N N E 12

because the federal judiciary would no long er “stand independent” of the L eg islature. Id . at 57–58 (plurality ).

Guided by these principles

, t he Supreme Court in Northern Pipeline struck do w n Cong ress’s broad g rant o f authority to the bankruptcy c o u r t s u nder the B ankruptcy Reform Act of 1978. I

d

. a t 87 (plurality

). The four-justice plurality reasoned that bankruptcy courts under the 1978 A ct

u n c o nstitutionally ex e rcised jurisdiction over cases withi n t h e purview of Article I I I courts, a nd wer e not subject to

su f ficient scrutiny by Article I I I courts. Id

. at 83–87 (p l u r a l i ty ). A full majority of the court, althoug h failing to ag ree on the scope of the “public rig h ts” ex ception that a llows Cong r ess to assig n a n arrow categ ory of case s t o Ar ticle I leg islative courts, concluded that the Act vested all “essential attributes” of the judicial power in the b ankruptcy courts, a nd the courts w ere therefore n ot consti t utionally a cceptable adjuncts. I

d

. at 69–71, 85–86 (plura lity ); see id

. at 91 (Rehnquist, J

. , concurring ).

I n I n re Burley , decided a few months after the Supreme Court' s decision in Northern P ipeline

, our court addressed the B AP' s constitutionality in lig h t of N orthern Pipeline

. 738 F .2d 981, 985–87 (9th Cir. 1 984). Our court concluded that the B AP, unlike the bankruptcy courts under the 1978 Act,

was constitutional. Id

. at 985. I n reaching that conclusion, our court emphasiz ed that the A rticle I I I court of appeals retained the “essential attributes of the judicial p ower.” Id

. at 985. Our
court retains that power beca u s e w e can effectively r eview the B AP' s decisions de novo, have the authority t o r ender final decisions, and ex ercise " control over the B A P in that the B AP c an be established only by order of the circuit c ouncil." Id

.I N R E O Z E N N E 13

After t h e decision in In re Burley

, Cong ress p assed two

more acts affecting the establishmen t of B A Ps. I n 1984 Cong r ess passed the “B ankruptcy Amendments a n d F ederal J udg ment Act of 1984,” Pub.L

. No. 98-353S 104(a), 98 Stat. 341 (1 9 84), followed by a n a mendment to the bankruptcy appeals statute in 1994, 28 U.S.C. § 158.

2 8 U .S.C. § 158, while enabling the increased u s e o f B APs a mong th e c i r cuits, still limits the B AP’s role within the federal judiciary

. Id

. ; J onathan Remy Nash & Rafael I

. Pardo, A n Empirical Investigation into Appellate Structure and the P e r ceived Quality of Appellate Review
, 61 V A N D

. L .R E V . 1745, 1757 (2008). Primarily , the 1994 amendments did not erase each circuit’s discretion in establishing a B AP. 28 U.S.C. § 158(b)( 1 ). M o r eover, the B AP does not have authority to hear bankruptcy appeal s “ unless the district judg es f or the district in which the appe a l [ ] o c cur[ s]
, b y majority vote, h ave a

uthoriz ed [ the B AP] to hear a nd determine appeals orig inating in such district.” 2 8 U .S.C. § 158(b)(2)(6).

The B AP a lso does n ot retain its own permanent set o f judg es. I n stead, the B AP is staffed by a rotating s et o f bankruptcy judg es who are appointed at the behest of t h e judg es o f the Court of A p peals of the United States for the circuit in w hich the bankruptcy court is located, and removed
at the behest of the J udicial Council of the Circuit. 28 U .S.C. § 152(a), (e); J udicial Counc i l of the Ninth Circuit, “Amended O rder Continuing the B ankruptcy Appellate Panel of the Ninth Circuit.” The rotating set o f judg es ha s n a r row jurisdiction to hear appeals from the bankruptcy court. Ag ain, the B AP only has jurisdict i on to “ h e a r and determine, withI N R E O Z E N N E 14

the consent of all the parties, appeals” from final judg ments, orders, and d ecrees fr o m t h e bankruptcy court. 28 U .S.C. § 158(b)(1).

T he B AP’s limited jurisdiction is identified by Cong r e s s ’ s treatment of the B A P 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). W h ile the d issent would h ave this court deviate from the statute’s plain lang uag e and g rant the B AP powers as thoug h Cong r ess had established the B AP as something other than a panel service, the r e is n o reason to do so. Had Cong ress i n tended for the B AP to ex ercise authority bey ond its prescribed role as a panel service, it would have provided for it in the B AP’s aut h o riz ing statute. Compare 28 U .S.C. § 158(b)(1) with 10 U .S.C.A § 9 41 (“There is a court o f record known as the United States Court o f Appeals for the Armed F orces. The court is established u nder Article I of the Constitution”), a nd 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.

. . six teen judg es who shall constitute a court of record known as the United States Court of F e deral Claims. T h e Court is d ec l ared to be a court estab lished under article I of the Constitution of the United States”).

Our court, recog niz ing the B A P’s narrow jurisdiction, has

even concluded that the B AP’s decisions are not binding

. I n

re Silverman

, 616 F .3d 1 001, 1005 n. 1 (9th Cir. 2 010) (“[ W ] e treat the B A P' s d e c isions as persuasive authority
g iven its special ex pertise in bankru p t c y issues”) (emphasis added); In re Cardelucci

, 285 F .3d at 1234 (“[ T ]his Court isI N R E O Z E N N E 15

not bou n d b y a [ B AP] d ecision”); Bank of Maui v. Estate Analysis, Inc.

, 904 F .2d 470, 472 ( 9th Cir. 1990) (“[ I ] t must be conceded that BAP decisions cannot b ind the district
courts themselves. As article I I I cou rts, the district courts

m u s t alway s be free to decline to f ollow B AP decision s a n d to formulate their own rules within their jurisdiction”).

The B AP’s subordinate r ole within the fede r a l j udiciary is pertinent t o our decision. Supreme Court and our court’s precedents e m p h a siz e that the B A P derives its leg itimacy from the overview e x ercised by Article I I I courts , as well a s the B AP’s inability to infring e upon “the essential attributes of judicial power.” N. Pipeline

, 458 U.S. at 8 6

– 8 7 ; In re Burley

, 783 F .2d a t 785–87. Even thoug h the barriers to Article I I I review the B AP would create by having authority under the All W rits Act “seem innocuous at f irst blush,” they nevertheless “chip away at the a u t h o r i t y of the J udicial B ranch.” Stern v. Marshall

, 131 S. Ct. 2594, 2620 (2011); see also id

., quoting Reid v

. Covert
, 354 U.S. 1, 39 (1957) (plurality o pinion) (“A statute may n o m ore lawfully c hip
away at the authority of the judicial branch t h a n i t may eliminate it entirely

. ‘Slig ht encroachments create new boundaries from which le gi o n s of power can seek new territory to capture’”). F irst, allowing the B AP to entertain writs of mandamus would circumvent the consent requirement in 28 U.S.C. § 1 58(c)(1), effectively preventing

a party from seeking review o f the dispute by an Article I I I di s t rict judg e as allowed by statute. Second, such authority would frustrate our court’s a p p e l l a te review by putting in place an ex tra procedural hurdle that respondents would have
to sur m o u n t in order to receive review. See F ed. R. App. P. 21; Ninth Circuit R. 27-1 “Advisory Committee Note”.I N R E O Z E N N E 16

The dissent nevertheless contends that the constitutional issue raised by our decision is Co n gr e s s’s unconstitutional deleg ation o f authority to the j u d icial branch. The dissent
arg ues that b y allowing the J udicial Council of the Ninth Circuit established the B A P
, C o ng ress has impermissibly deleg ated its court-making authority to the courts. First, Cong r ess did not deleg ate B AP establishment to the courts–it

was deleg a ted to an administrative authority

, the J udicial Council of th e C i r cuits. The d issent r epeatedly misses this important d i s t i nction. I t arg ues Cong ress g ave the power to create the B AP to the court. B ut this arg ument is i r r e l e vant. Clearly

, this was an administrative responsibility g iven to an administrative part of our sy stem: the J u d icial Council of the Circuits. Second, because it is a temporary en t ity ex isting at the option of the J udicial Council of t h e Circuit, it does not have the same function or power o f a court–thus its name as

a “panel” created or disbanded by the J u d icial Council of the Circuit.

The Suprem e Court, in addressing separation-of-powers

concerns in cases involving the judicial branch, has ex p lained that there are “two dang ers: first, that the J udicial B ranch neither be assig ned n o r allowed tasks that are more properly accomplished by [ other] branches, and second, that no provision of law impermissibly threatens the institutional i n t eg rity of the J udicial B ranch.” M istretta v. United States
, 488 U.S. 361, 383 ( 1 989) (internal q uotations and citations

om i tted). Our decision does not raise either concern. Cong r ess has not simply deleg ated all court-making authority to the judicial councils of each circuit. Rather, Cong ress has allowe d judicial councils to take stock of the needs within their circuit, and, based on those c onclusions, to establish a panel service that is limited in both the subj e c t matter it can

a d j udicate and its authority to render final d ecisions. T h eI N R E O Z E N N E 17

authoriz ation con t i n u e s o nly so long as the J udicial Council of the Circuit on its own decides. 28 U.S.C. § 158(b)(2). The Supreme Court ha s never held, nor has our c ourt, that Cong r ess cannot authoriz e the judicial councils in each circuit to establish a temporary

panel service to adjudicate specific, public rig hts, such as bankruptcy claims. See Stern
, 1 31 S. Ct. at 2609–11 (defining“public rig hts”).

I I I

.

W e therefore overrule In re Salter and hold that the B AP is not a “court[ ] established by Act of Cong ress” under subsection (a) of the A l l W r its Act, so it does not have j u risdiction to entertain a mandamus petition. Our decisi o n does not leave parties without recourse to mandamus relief from decisions by a bankruptcy judg e, since subsection (a) o f the All W rits Act applies to f ederal district courts. Sec

. & Exch. Comm’n v. G. C. George Secs., Inc.
, 637 F .2d 6 8 5, 688 (9th Cir. 1 9 8 1 ) (holding that “the d istrict court

. . . had the authority to consider [petitioner’s] request for r elief under the All W rits Act,” and observing that “a district court’s powers under § 1651 should be broadly construed” (internal quotation marks omitted)).

W e v a ca t e the decision o f the B AP and r emand the case with instru c t i o n s to dismiss the petition for lack o f jurisdiction. Parties shall bear their own costs f or the appeal. F ed. R. App. P. 34(a)(4).

VACATED AND REMANDED.I N R E O Z E N N E 18

B YB EE, Circuit J udg e, c o n c u r ring in the judg ment but vig orously

disag r eeing with every

thing else:

The All W rits Act p r ovides that “[ t] he Supreme Court a nd all courts established by

Act of Cong ress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and a gr ee a b le to the usag es and principles o f law.” 28 U.S.C. § 1651(a). The majority h olds that the B ankruptcy Appellate Panel may not issue writs o f mandamus b e cause it is not a “court[ ] established by Act o f Cong r es s

. ” M a

j

. Op. at 17. Oh, the majority is w illing

, I think, albeit beg rudg ing ly

, to admit that t h e BA P is a c ourt; it just doesn’t b elieve that it w as “established directly by A ct of Cong ress. ” 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 ” b y Co n gr ess. B ut the majority does. Maj. O p. a t 4, 5–6. I t has added a word to the A l l W r i t s A ct that is not there. And, for the reasons I will

ex p lain, it is so unnecessary to do so, and it is g oing to cause us major constitutional headaches.

I just can’t g o there. I concur in t h e judg ment only

, a nd respectfully

dissent otherwise.

I

I am g oing to start with an observation: even among fly

specks, this case is a nothing

. We are dealing with the denial of a w rit of mandamus f

iled by a party with a penchant for repeat (and like l y f

rivolous) bankruptcy filing s. 1 And there

1 Ozen n e f

iled s o m e s ev en b an k

ru ptcy cases o v er th e co u rse o f f iv e y ears.I N R E O Z E N N E 19

are several way s we c o uld and should have disposed of this case. Here is what happened.

A. Procedural History

“The crux of O z enne’s g r ievance is that his home was sold o u t from under h i m in violation of the b ankruptcy stay provisions.” According ly

, several y ears after his bankruptcy

case had b e e n c losed out, h e soug ht to reopen it to seek damag es for alleg ed v iolations of the automatic stay , made in connection with the sale o f his home. I n 2007, Oz enne filed

a mo t i on in the bankruptcy court seeking to “set aside” the bankruptcy c ourt’s earlier ruling , which held that under F ed. R. Civ. P. 60, Oz enne could not reopen his c a s e

. O z enne’s

reason for reopening the bankruptcy case was his r easo n f o r all the numerous motions he h a s f iled: to seek “damag e s

u n d e r 11 U.S.C. § 362, which allows for damag es f o r violation of a bankruptcy stay .” T h e bankruptcy court denied the motion for lack of jurisdiction, on ac c o u n t o f Oz enne’s bankruptcy case having been closed for sev e r a l y e ars at that point. O z enne appealed that decision to t he federal district court, which held that “[ t] he bankruptcy court was correct to reject Oz enne’s motion,” because it w as untimely under Rule 60. Oz enne then filed a di r e ct a p p e a l to this court, and a three-judg e panel summarily affirmed.

At that p oint Oz enne filed a “”Motion for Sanctions [ for] Violations of 11 U SC 3 6 2(a)” in the bankruptcy court. I n that motion, O z enne arg ued that a “recent decision in the 10th Circuit Court of Appeals has ruled that bankruptc y courts retain jurisdiction to hear v i o l a t ions o f 11 USC 362, even after the underly ing bankruptcy case has been dismissed.” I n other words, the motion s o u gh t the same thing Oz enne has been se e k ing for y ears: to reopen his case to determineI N R E O Z E N N E 20

whether his home was sold in violation o f the automatic stay and to colle c t damag es f

or it. The bankruptcy court held it had no jurisdiction to g rant relief. Oz enne never f iled a notice of appeal. Ag a in, another judg ment became final.

Oz enne then filed a petition f or a writ of mandamus with
t h e B AP. That petition soug h t an order from the B AP
, requiring the ba n k r u ptcy c o u rt to ex e r cise jurisdiction a nd hold “a t ri a l or h e a

ring for the violations of law under 11 USC 362.” The B AP’s docket shows t hat the petition received no response from the appellees, and the B AP denied it and closed the case out in a matter of eig hteen day s. I n its decision, the B AP noted its authority to entertain writs under the All W rits Act, recited the standard for r e c e i v ing such relief, but summarily h e ld that Oz enne “has not met the burden to establish that a w r i t of mandamus should be issued.” Oz enne is now before u s on a ti m ely filed pro se appeal from that decision.

B

. How the Majority Should Have Handled This

F irst, althoug h not entirely fre e f rom doubt g iven Oz enne’s pro se briefing

, this c a s e is likely res judicata. Oz enne has been doing the same thing for y e ars. He admits it

. His o wn briefing notes that the bankruptcy court “consistently ruled”, in “2003, 2 0 0 7, [ and] 2011,” that it lacked jurisdiction to reopen Oz enne’s case an d g r ant him relief. I see no substantive differen ce between what Oz enne asked the bankruptcy court to do in his 2007 motion and what he asked it ag ain in his 2011 motion. His 2007 motion ended with a final judg ment from this court a ffirming the district court’s determination that Oz enne could not seek the r elief he
soug h t—which happens to be the ex act r elief he soug ht in his 2011 motion in the bankruptcy court and his subsequentI N R E O Z E N N E 21

mandamus petition before the B AP. Assuming that Oz enne’s description is correct, he mis s e d the time to file a notice o f

a p p eal on the bankruptcy court’s denial of his motion. S o that determination became final. I ndeed, the number of final judg ments telling Oz enne “no” is h ard to count. 2 His c laims strike me as being

barred by

res judicata.

Second, w e mig ht also reach the merits and simply affirm because Oz enne has not even come close to showing that he is entitled to a writ of mand a mus. He cites a sing le B AP
case, I n re Johnson

, 346 B .R. 190 (9th Cir. B A P 2006), a nd that’s it. Oz enne has not shown that his “rig ht to the issuance of the w rit is clear and indisputable.” D eGeorge v. U.S. Dist. Court for Cent. Dist. o

f Cal.

, 219 F .3d 930, 9 3 4 (9th Cir. 2000) (internal quotation m a rks omitted) (noting that in
g ranting or deny ing a writ, c o u r t s c onsider whether the petitioner (1) “has no other adequate means, such as a direct

a p p e a l

, t o attain the relief he or she desires,” (2) “ will be damag ed or prejudiced in a way not corr ectable o n appeal,” (3) the “district court’s order is c learly erroneous as a matter of law,” (4) the “district court’s order is an oft-repeated error,

or manifests a persistent disreg ard o f t h e federal r ules,” a nd (5) the “district court’s order raises new and impo r t ant problems, or issues o f law of first impression”). This is an equally plausible g r ounds to affirm.

F inally

, as the majority ’s opinion sug g ests, the B AP may have lacked jurisdiction. Maj. Op. at 8–9. The B AP’s appellate jurisdiction is pre d icated o n the consent of the

2 A s th e ap p ellees h av e n o ted

, Ozen n e ’s “u n s u ccessf u l ap p eals o f th e

u n d erly in g issu es h erein i n clu d ed ap peals to t h e B A P
, th e District Co u rt, tw ice to th e Calif

o rn ia C o u rt of A

pp eals, th e U.S. Su

p rem e Co u rt w

h ich d en ied certio ra ri , an d to th is Ho n o rab le Co u rt.”I N R E O Z E N N E 22

parties before it. S

ee 28 U.S.C. § 158. And the issuance o f

a writ under the All Writs Act r equires pre-ex isting jurisdiction. See 28 U.S.C. § 1 651 (g ranting power courts to issue “all writs necessary or appropriate in aide of t h e i r respective

jurisdictions ” ( emphasis added)). B ut at worst, the facts here sug g est that we dismiss this case only because we lack evidence of the appellees’ consent, a nd theref o r e the B AP did not have jurisdiction to consider this particular writ
, not a ll writs in g eneral. So under that view, we just dismiss the appeal and all g o home.

I would resolve th i s c a s e o n any one of the above bases, and thus I concur in the judg ment o n ly

, insofar as that judg ment is that O z e n n e loses his case. B ut instead o f stopping w ith the most obvious answers to a most obviously meaning less c ase, the majority forge s ahead, without even calling f o r b riefing

, a

nd g r inds an ax e with which to c ut the B AP off at the knees. The majority o p i n ion is needless,
wrong , and raises serious constitutiona l concerns with the separation of powers.

I I

T h e majority labors mig htily to avoid making a concession that, if y ou read carefully

, it still winds up making : the B AP is a court. A nd r eally

, what else can the majority do? The B A P is “ composed of bankruptcy judg es,” 28 U.S.C. § 1 58(b)(1), serving o n a “ 3-judg e panel,” id. § 158(c)(1). The panel “hear[ s] and determine[ s]

. . . appeals” from “final judg ments, orders, an d decrees” o f bankruptcy courts. I

d

. § 158(a)(1), (b)(1). And if not appealed to us, the B AP’s d eci s i o n s a re final and have preclusive effect

. I

n re Scovis
, 249 F .3d 975, 980 (9th Cir. 2001) (“The B AP renders a fi n a l o r d er when it a ffirms o rI N R E O Z E N N E 23

reverses a b ankruptcy court' s final order.”). The majority strains credulity when it say s that the B AP “does not have the

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

course it does. I n its appe llate function, the “bankruptcy appellate pan e l

. . . 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 o f federal d istrict courts ov e r bankruptcy decisions as an alternative to the B A P); W ellness Intern. Network v. Sharif

, 135 S. Ct. 1 932, 1946 (2015) (“Cong ress has supplemented the c apacity of district courts throug h the able assistance of bankruptcy judg es.”); Northern Pipeline Constr. v

. Marathon Pipe Line Co

. , 4 5 8 U.S. 50, 55 (1982) (plurality opinion).

The majority scrupulously avoids addressing any o f these realities. I nstead, like uttering “ B ibbidi-B obbidi-B oo” to turn pumpkins into carriag es, the majority b elieves that its o wn incantation ( “ p a

n e l s e r vice” and “ tribunal”) will transform the B AP into something other than a court. I readily concede that § 158 calls the B AP a “panel service

. ” Bu t i f the majority believes the B AP is not a court, it n e v er s a y s so. I ndeed, if the majority really thoug ht the B AP was not a court at all, it could have written a much shorter opinion, because under the All W rits Act only

“ c ourts

. . . may issue all writs necessary

3 F o r in stan ce, th e m aj ority s ay s th e B A P ’ s d ecisio n s are “ n o t b in d in g .” Maj

. O p

. at 1 4. O b v io u sly th ey are n o t b in d in g o n A rticle III co u rts; b u t th at is b esid e th e p o in t. T h e ab ilit y to b in d an o th er co u rt is n o t th e h allm a r k o f a “ co u rt,” oth erw ise o u r f ed eral d istrict co u rts w o u l d n o t b e

“ co u rts,” a s t h eir d ecisio n s are sim ilarly n o t b in d in g

. S ee H a rt v. Ma ssa na ri
, 2 66 F.3 d 1 1 5 5
, 11 7 4 (9 th Cir. 2 00 1 ). W h a t m a tters f or p u rp o s es o f w

h eth er th e BA P is a “ co u rt” is w h eth er it issu es j u d g m en ts th at b in d t

h e p a rties

. T h e m aj o rity ’ s resp o n se o n th is p o i n t is

co n sp icu o u sly

ab sen t.I N R E O Z E N N E 24

or appropriate.” 28 U.S.C. § 1651(a) (emphasis added). Had
t h e m a j ority simply declared the B AP not a court, it cou l d have saved itself the g y

mnastics over the word “establish” in § 158.

I am skeptical that the a

bsence of the mag ic word “court” is sig nificant here. L ike the Tax Court—another Ar t i cl e I court—the B AP’s “function and role in the federal j u d i c i al

sc h e m e c losely resemble those o f the federal district courts, which indisputab l y are ‘Courts o f L aw.’” Freytag v

. Comm’r
, 5 01 U.S. 868, 891 (1 9 9 1 )

. T he power the B AP wields under § 158 is not that ex ercised by s o me mere tribunal or administrative a djunct, like a special master or an arbitrator. The B AP is an alternative to federal district courts for p arties appealing from the b ankruptcy courts. 28 U.S.C. § 158(b)(1), ( c)(1); see also W ellness

, 135 S. Ct. a t 1 9 46; Conn. Nat’l B ank

, 503 U.S. at 2 52. B y statute, appeals heard by the B AP “shall be taken in the same manner as appeals in civil proceeding s g enerally a r e taken to the co u r t s o f appeals.” 28 U.S.C. § 158(c)(2). Our own appellate jurisdiction is the same whether the appeal orig inates in “the ba n kruptcy court, the district court, or the bankruptcy appellate panel.” 28 U.S.C

. § 158(d)(2)(A). I n all r espects, the B AP is treated by the statutes as equal in authority to the district c ourt and g reater in authority to the bankruptcy court. See, e.g. , i d. § 158(d)(2)(B )

, (D); Pub. L

. No. 1 09-8, Title XI I
, § 1233(b)(3)(A), (5)(A), (6), 119 Stat. 2 3
, c i t ed in 28 U.S.C. § 1 58 note. The one noticeable difference b etween these courts’ jurisdiction is that the consent of the parties is required to establish B AP jurisdiction. B ut the m a jority
cannot , by its repeated references to the consent a spect o f B AP jurisdiction, seriously mean that the bankruptcy courts, for ex ample, cease to be “ courts” when their Article I I I jurisdiction to adjudicate non-core proceeding s hing es on theI N R E O Z E N N E 25

consent o f the parties. See W e llness

, 1 3 5 S

. C t

. at 1944; c f. Roell v. W

ithrow

, 538 U .S. 580, 5 85–86 (2003) (noting the consent-based ci v i l jurisdiction of the United States
mag istrate judg es to dispose of cases a nd e nter final jud gm e nt). I s the majority sug g esting

, sub silentio, that the bankruptcy

courts are unconstitutional?

The majority similarly cannot d odg e the fact that the B AP is a court by telling us that it has “none o f the permanency o f

a co u rt.” Maj. Op. at 5. “Permanency ” as an a ttrib u t e inherent to a “court” is be y o n d m e, in p art b ecause I do not know w hat the majority means by “permanency .” Does it

mean populated by life tenured judg es? I f so, then Article I
courts ar e n o t courts. D oes it mean constitutionally permanent? I f so, then only the Supreme Court is a court, see U.S. Const. art. I I I , § 1; we don’t even count because we are
g ood o nly so long as Cong ress say s so, se e 2 8 U .S.C. §§ 1291–1296 (establishing the jurisdiction of the c o u r t s o f appeals). The thing is, permanency is relative and tells us little to nothing about w hether a body is prope r l y a “court.” The T emporary Emerg ency Court of Appeals w as not permanent and was not meant to b e. See Economic Stabiliz ation Act Amendments of 1971, Pub. L

. No. 9 2-210, § 211, 8 5 Stat. 743 (creating the Temporary Emerg ency Court of Appeals, to be populated b y di s t r i ct and circuit judg e s appointed at will b y the Chief J ustice); Act o f October 29, 1992, Pub. L

. No. 102-572, § 1 0 2, 106 Stat. 4506 (abolishing the Tempor a r y Emerg ency Court of Appeals). B u t it was a court n evertheless. The same c a n be said of the o r i gi n al Emerg ency

Court of Appeals established during W orld W ar I I
, see Emerg ency P r i ce Control Act, Pub. L

. No. 7 7-421, § 204, 56 Stat. 23, 31 (1942), a nd three-judg e district courts (which literally last for o n l y the duration of a lawsuit), 28 U.S.C. § 2284, and state courts with judg es sitting pro tem,I N R E O Z E N N E 26

s e e , e

. g. , Cal. Const. art. 6
, § 2 1; Okla. Const. art. 7-A, § 6; I nd. Code § 33-31-1-12; Kan. Stat. Ann. § 20-310a; W a sh. Rev. Code. § 2.08.180.

The point is, what y ou call an adjudicative body and h ow long it ex ists are much less indicative o f whether that body is a “court” than what the body actually does and the powers it possesses. B y

the latter standard, the B AP is a court.

I I I

T h e All W rits Act provides that “ courts established b y Act of Cong ress” may issue appropriate writs, such a s a writ of mandamus. 28 U.S.C. §1651(a). W hen Cong ress provided for bankruptcy appellate pa n e l s, it provided that “[ t] he judicial council of a circuit shall establ i s h a bankruptcy appellate panel service . . . unless the judicial council finds” that the c ircuit has insufficient judicial re s o u rces or the service would result in u ndue delay or inc r e as e the cost o f appeal to parties. I

d. § 158(b)(1). The m a

j o r ity concludes that because of the “ unless” clause, Cong ress did not “establish” the B AP a

nd, according ly

, the B AP is n o t a “court established by Act of Cong ress , ” b ut “a tribunal created b y t h e independent actions, choices, or judg ment of a thi r d party .” Maj. Op. at 7.

The tex t of § 158 and the All W rits Act should be

su fficient to decide this issue. T h e B AP is plainly a court established by an Act of Cong ress. Section 158 authoriz es us, throug h our judicial council, to populate t h e BAP. The flex ibility Cong ress g ave us not to p opulate the B AP if our peculiar circumstances dictate otherwise d o es n o t affect the fact that the court we appoint draws its ex istence from

c o ng r essional authoriz ation and d irection. O ur choic e t oI N R E O Z E N N E 27

effect or not to effect the panel authoriz ed by Cong ress does
not chang e the fact t h a t the court was created by “Act o f Cong r ess.” And that is all tha t t h e All W rits Act demands. The B AP is a c ourt crea t ed b y a n Act of Cong ress and may , in cases where it otherwise has jurisdiction, issue w rits under
t h e All W rits A ct. See In re Salter

, 279 B .R. 278, 2 8 0

– 8 1 (9th Cir. B AP 2002).

The majority

, because of a vagu e concern that the definition o f “e s tablished” w ould open up the writ power to “any tribunal that receives a ny kind of federal f

u n d ing o r authoriz ation,” Ma

j

. O p

. at 6–7, proceeds to g r aft a new qualifier onto the All W rits Act—that the court be “directly” established by Act of Cong ress, id. at 7
, 10. I do not see that word any w here in the All W rits Act, and would according ly decline to write it into the statute. Moreo ver, the majority ’s

concern is unfounded. “ T he All W rit s Act

. . . is n ot an independent g r ant of appellate jurisdiction,” 16 Charles Alan W r ig ht et al., F ederal Practice & Procedure § 3932, at 470 (2d ed. 1 9 96), but is instead a

ux iliary in nature in aiding courts to

ex e r cise their already-existing jurisdiction. Marbury v

. Madison

, 5 U.S. (1 Cranch) 137, 175 ( 1 8 0 3 ); see also In re Previn
, 204 F .2d 417, 418 (1st C i r

. 1 9 53). That means that the jurisdiction of any court must b e established and preex isting before it can issue a n ex traordinary writ. This, along with the fact that only courts can u se the All W rits Act, see 28 U.S. C. § 1651(a), diminishes any concern the majority
may be harboring about nameless federal tribunals using the writ power.

F inally

, the majority say s its “decision does n o t l e ave parties without recourse t o mandamus relief f rom decisions by a b a nkruptcy judg e, since subsecti o n (a) of the All Writs Act a pplies to federal district c ou rt s

. ” Maj. Op. at 17. ThisI N R E O Z E N N E 28

is hollow consolatio n indeed. Today ’ s ruling neuters the B AP. Section 158 all o w s the parties to choose to have an appeal heard in front o f the B AP. See 28 U.S.C. § 1 58(b), (c), ( d ). B u t buy er beware. The Supreme Court can issue w r i t s under the All W rits Act, 28 U.S.C. § 1 6 51(a), and so can we,

see Cal. Energy Comm’n v. Johnson

, 767 F .2d 6 3 1, 634 (9th Cir. 1 985), as can the district courts, SEC v. G.C. G e orge Sec., Inc.
, 637 F .2d 685, 6 8 8 (9th Cir. 1981), as can the bankruptcy courts themselves

, Nat’l Bank of Ark. v. Panther Mountain Land De v

. , LLC ( In re P anther M

ountain Land Dev.
, LLC)

, 686 F .3d 9 16, 926 (8 th Cir. 2012); Alderwoods Group, Inc. v

. Gar cia
, 682 F .3d 958, 972 n.24 (11th Cir. 2012); I n re J ohns-Manville Corp.
, 27 F .3d 48
, 4 9 (2d Cir. 1994). B ut for reasons never fully ex plained by the majority

, Cong r ess purportedly left the B AP o u t i n the cold. Every other court that can adjudicat e the parties’ claims in a bankruptcy case, ex cept the B A P, can issu e a w rit in furtherance of its already -ex isting jurisdiction to issue stay s, injunctions, and orders enforcing its own judg ments. Under the majority ’s view, Cong ress has estab l i s h ed, in J u stice Scalia’s memorable p hrase, “a sort of junior-varsity [ c ourt]
, ” vested with some, but not all, of th e o r d i n ar y powers o f a court. United States v. Mi s t r e t t a , 488 U.S. 361, 427 (1989) (Scalia, J

. , dissenting ). I

doubt the majority

is correct.

I V

Th e majority ’s opinion b eg s an answer to the following
q u e s t ion: if the B AP is not “a ‘court established b y Act o f Congress ,’” Maj. Op. at 5–6 ( emphasis adde d )

, t h en who, precisely , “established” this court?

I f w e accept the majority ’ s analy sis, the B AP w a s

“ established by the J udicial Council of the Ninth Circui t

. ”I N R E O Z E N N E 29

M a j. Op. at 5–6. This p resents us with a second, far mor e troubling question: Can Cong r ess deleg ate its power to c reate

c o u r ts to the judicial b ranch? The majority say s that t h e

answer is “y es,” and sees no problem. See Maj. O p

. at 4 (“Cong ress g ave the judicial council of each circuit discretion
t o establish a bankruptcy appellate panel service.”); id

. a t 7 (concluding that “the B AP was created by the J udicia l Council of the Ninth Circuit” throug h an “authoriz [ ation] ” from Cong ress). I am deeply skeptical of the constitutionality of such an arrang ement between Cong ress and the J udiciary

.

F irst, we have no independent power under Article I I I to create inferior courts. W e are vested only with the “ j udicial Power of the U nited States,” U.S. Const. art. I I I
, § 1, and the “judicial Power of the United States” does not encompass the
po we r to create other c o urts. I t is the power to adjudicate certain “Cases” and “Controversie s ” that arise b etween adverse parties, “with such Ex ceptions, a n d under such Reg ulations as the Cong ress shall make.” Id. a rt. I I I
, § 2, cls. 1, 2; see also Muskrat v

. United State s , 2 1 9 U. S. 346, 356 (1911) (“J udicial power,

. . . is the power of a court to decide and pronounce a judg ment and carry it int o effect b etween persons and parties who bring a case b efore it for decision.” (internal quotation marks omitted)); Durousseau v. United States
, 10 U.S. (6 Cranch) 307, 3 14 ( 1 810) (“The appellate
power s o f t h e court

. . . are g iven by the constitution. B ut they ar e limited and reg u lated by the judicial [ act]
, and b y such other acts as have been p a ssed o n the subject.”). B y contrast, Articles I and I I I ex pressly g rant the p o w e r to establish courts to Cong ress. U.S. Co n s t

. art. I
, § 8
, cl. 9 (“The Cong ress shall have Power

. . . To constitute T r ibunals inferior to the supreme Court.”); id. a rt. I I I
, § 1 (“The judicial Power of the United State s , s h all be vested in one supreme Court, and in such inferior Courts a s the Cong ress may fromI N R E O Z E N N E 30

time to time ordain a

n d establish.”). The distinction between, and classifi c a t i o n of, Article I I I and A rticle I courts—also denominated “constitutional” and “leg islative” courts—“has been productive of much confusio n and controversy

. ” Glidden Co. v. Zdanok

, 370 U.S. 530, 5 34 (1962) (plur a lity opinion). B ut whatever t

h e constitutional disconnect b etween those two sy stems of courts, we h ave no power to establish a bankruptcy

court. 4

4 T h ere is, to tak e th e ex am ple at h an d, m o re th an a little co n f u sio n ov er th e co n stitu

tio n al so u rce of C o n g ress’ s p o w er to estab lish th e b an k ru p tcy

co u rts. T h ere are at least t h ree t h eo ries, all o f w

h ich h av e been rej ected b y at least so m e p art o f th e Co u rt. First, so m e h av e arg u ed th at C o n g ress

m ay rely o n A rticle I to estab l i s h “T r i b u n als in f erio r to th e S u

p rem e Co u rt.” U.S. Co n st. art I, § 8
, cl. 9

. B u t a p lu rality o f th e Co u rt h as s aid th at th is p ro v isio n “ p lain ly relates to th e ‘ i n f erio r Co u rts’ p ro v i ded f

o r in A rt. III, § 1 ; it h as n ev er b een relied o n f o r estab lish m en t o f an y o th er trib u n als.” Glid

d en Co

. v. Z

d a n o k

, 37 0 U.S. 5 3 0
, 5 4 3 (1 9 6 2 ) (p lu rality

o p in io n ). Seco n d

, o th ers h av e arg u ed th at Co n g ress d eriv es its au t h o rity f ro m th e po w er to “ estab l ish

. . . u n if orm L aw s o n th e su

b j ect of B an k ru p tcies.” U.S. Co n st. art. I, § 8 , cl. 4

. H o w ev er, a plu rality o f th e Su p rem e Co u rt m ay h a v e rej ected t h at clau se as a so u rce o f p o w er f or creatin g b an k

ru p tcy co u rts, t

h o u g h it h as n o t sq u arely ad d ressed th e i ssu e. No rth ern Pip elin e Co n str. v. Ma ra th on Pip e Lin e Co
., 4 5 8 U.S. 5 0
, 7 2

– 7 4 (1 9 8 2) (p lu rality o p in io n ). Bu t see W elln ess In t ’l Netwo rk, LTD. v. S h a rif

, 1 3 5 S. Ct. 1 9 3 2
, 1 9 70 n .7 (T h o m as, J
., d issen tin g ) (n o tin g th at th e No rth ern Pip elin e p l u rality w as “ co n sid erin g w h eth er A rticle III i m

p o ses lim its o n C o n g ress’ b an k ru p t cy p ow er,” n ot “ w

h et h e r C o n g ress h as th e p o w er to estab lish b an k

ru p tcy co u rts as an an teced en t m atter”). T h ird

, th e Co u rt h as d en ied th at Co n g ress can estab lish b an k ru p tcy co u rts as an

“ ad j u n ct” to A rticle III co u rts, p resu m ab ly rely in g o n

so m e co m

b in atio n

o f A rticle III, § 1
, an d th e Necessary an d P ro p er Clau se, A rticle I, § 8, cl. 1 8

. See S tern v. Ma rsh all

, 1 3 1 S

. Ct. 2 5 9 4
, 2 6 1 9 (2 0 1 1 ) (n o t i ng b an k ru p tcy j u d g es’ ab ility to en ter f in al j u d g m en ts an d co n clu d in g th at

“ [g ]iv en t h at au th o rity

, a ban k

ru p tcy co u rt can n o m o re b e d eem ed a m ere

‘ ad j u n ct’ o f th e d istrict co u rt th an a d istrict co u rt can b e d eem ed su ch an

‘ ad j u n ct’ o f th e co u rt o f ap p eals.”); s ee a lso N o rth ern Pip elin e , 4 5 8 U .S. at 7 6

– 8 7 (p lu rality

o p in io n ).I N R E O Z E N N E 31

I n response, the majo r i ty c r iticiz es my premise. I t concludes that “Cong ress did not deleg ate B AP establishment
to the courts—it was deleg ated to an a dministrative a uthority

, the J udicial Council of the C i rcuits.” Maj. Op. at 16. I n separation-of-powers terms, this i s 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” d o e s not differ as a pplied to “nonadjudicatory a c tivities that Cong ress has vested either in federal courts or in auxiliar y b odies within the J

udicial Branch .” Mistretta
, 488 U.S. a t 388 (emphasis added). I f the majority wants to a r gu e that the J udicial Council is not located in the J udicial B ranch, it is paddling upstream.

The second problem w it h t he d eleg ation o f power the majority assumes is that it is unprecedented. To my knowledg e, there is n o instance of Cong re s s deleg ating its court-making power to the courts ; we h a ve been afforded other powers, but not the power to establish courts. Throug h the Rules Enabling Act, 28 U.S.C. §§ 2 071–77, Cong ress has deleg ated to us rule-making authority over “the practice a nd procedure of federal courts.” Sibbach v. W ilson

, 312 U.S. 1, 9–10 (1941) (holding t hat Cong ress has the “undoubted power” to de l e ga t e that authority ); W a yman v. Southard

, 2 3 U. S. (10 W heat) 1, 43 (1825) (noting that rule-making authority w i t h respect to judicial proceeding s may be “conferred on the judicial department” by Cong ress). Those rules, however, “may not ex pand or diminish the jurisdiction conferred b y Cong ress.” Unit e d S t a tes v. Jacobo Castillo

,

W e n eed n o t w ad e in to th is m o rass. It is su ffi c i e n t to n o t e t h at,

w h atev er th e so u r c e (o r n o t) o f Co n g ress’s au th o rity to estab lish b an k ru p tcy co u rts, th e Co n stitu

tio n d o es n o t v est an y su ch au th o rity in th e j u d iciary

.I N R E O Z E N N E 32

496 F .3d 947, 954 (9th Cir. 2007) ( en ban c ). Nor may we draw on our authority t o a ppoint bankruptcy judg es as the

source of p ower for establishing a bankruptcy appellate panel. Our power to appoint “inferior Officers” is conferred b y Article I I an d a u t h o r iz e d by statute. U.S. Const. art. I I
, § 2, cl. 2 ; 28 U.S.C. § 152(a)(1). A c c o r d ing ly

, we can only appoint such o fficers to ex isting offices, statutorily created b y Cong r ess. See Edmond v. Un i t ed States
, 520 U .S. 651, 660 (1997) ( noting that the A ppointments Clause pe r m its Cong r ess to vest the appointment power for inferior officers in the courts “ b

y Law ” (quoting U.S. Const. art. I I
, § 2, cl. 2 ) (emphasis added)). To take an e v en a more ex treme ex ample, the Court approved the d eleg ation involved in t h e power to issue the Sentencing Guidelines by r eference to our historical involvement in the discretion-laden field of criminal sentencing

. S

e e M i s t retta , 488 U .S. at 3 90 (noting

, in order
to justify the location of the Sentencing Commis s i o n within the J u d icial B ranch, that “the sentencing fun c t i o n long has been a peculiarly shared responsibility a m ong the B ranches of Government” and that for “ more than a ce ntury , federal judg es h ave e njoy ed wide discretion” in s e n t encing ). B ut there is no history of courts making other courts. And while novelty is not a d eath kne ll, it is no ring ing endorsement o f constitutionality e ither. See Free Enter. Fund v. Public Co. A c c o u nting Oversight B d. ( PCAOB ), 561 U.S. 477, 50 5 (2010) ( “Perhaps the most tellin g i n d ication of the severe constitutional problem w ith the PCAOB is the la c k o f historical precedent for this entity .” (internal quotation marks omitted)).

Third, even if I thoug ht C o n g ress had deleg ated its authority to establish courts to us, we c o u l d n o t accept the deleg ation. The Supreme Court has held that Cong ress may deleg ate “ex trajudicial activities” to the J udiciary only if theI N R E O Z E N N E 33

deleg ated task has a “close relation to the central mission o f
t h e J u d i cial B ranch,” is not a “task[ ]

. . . more proper l y accomplished by [ o ther] b ranches,” and does “not trench
upon the prerog atives of another B ranch.” Mistretta
, 488 U.S. at 388, 389–90 (quoting Morrison v. O l s on , 487 U .S. 654, 680–81 ( 1988)). I am unpersu a d e d these requirements would be met by a cong ressional deleg a tion of court-making power to the J udiciary

. To beg in with, I f ail to appreciate how court-creation has a “close relati on to the central mi s sion of the J udicial B ranch.” Our mission is to interpret the law in resolving disputes between parties, not to enlarg e the superstructure of g overnment. T he g ap b etween promulg a ting r

ules of procedure, appointing Article I judg es,

o r propounding sentencing g uidelines applicable in judici al proceeding s on the one hand, and creating new tribunals that
possess the power to issue final judg ments on the o ther h and, is as o bvious as it is w ide. Moreover, there ar e p l e n t y o f

reasons to conclude that creating courts is “more properly accomplishe d ” by Cong ress, and that we “trench upon” Cong r ess’s prerog atives in this case by re a d i n g § 158 a s deleg ating to the J udiciary the powe r to establish the B AP. The separation of powers under our Constitution prohibits

o n e branch from usurping the p owers of another or gi v i n g away its power to c h eck another B ranch. Un i t e d S t ates v

. Nixon
, 4 18 U.S. 683, 704 (1974) ( “ [ T] he ‘judicial Power o f the United States’

. . . c a n n o more be shared w ith the Ex ecutive B ranch than the Chief Ex ecutive, for ex ample, can share with the J udiciary the veto p ower, or the Cong r ess share with the J u diciary the power to overr i d e a Presidential veto.”); see a lso Stern v. Marshall

, 1 3 1 S. Ct. 2594, 2611–15 (2011) (permitting Article I bankruptcy courts t o adjudicate defamation claims viol a t e d separation of powers); PCAOB
, 561 U.S. at 497 (dual-lay e r o f for-cause protection over ag ency b oard members v i o lated separation of powers);I N R E O Z E N N E 34

Clinton v. City of New Y ork

, 524 U.S. 417
, 435–49 (1998) (line-item veto); Plaut v

. Spendth r ift F arm, Inc.
, 514 U.S. 211, 225–26 ( 1995) (statute revising final judg ment made b y Article I I I courts); Bowsher v. Synar
, 478 U .S. 714, 732–34 (1986) (placing e x ecutive p ower in official removable o n ly b y C o n g r ess); INS v. Chadha

, 462 U .S. 919, 954–59 (1983) (cong ressional over ri d e of ex e cutive e x ecution of the law); Northe r n P ipeline

, 458 U.S. at 63–76 (plurality opinion) (placement of judicial power over private rig h ts outside o f Article I I I c ourts); Buckley v

. V a leo

, 4 24 U.S. 1, 126–29 (1976) (g iving a p p o i n tment power to Speaker of the House and president pro tem of the Senate).

As I previously ex plained, the jurisdiction and ex istence of both Article I a

n d I I I lower c ourts d epends “entirely on statutory g rants from Cong ress .” Evans v

. Thompson

, 518 F

. 3d 1
, 5 (1st. Cir. 2008); see a lso Printz v. United States
, 521 U.S. 898, 907 (1997) (“I n accord w ith the so-called Madisonian Compromise, Article I I I , § 1, established only a Supreme Court, and made the creation of lower federal courts optional with the Cong ress—even thoug h it was obvious that the Supreme Court a lone could not hear all feder a l cases throug hout the United States.”); Pa l mo r e v. U nited States
, 411 U .S. 389, 400–01 (1973) (“The decision with respect to inferior f ed e r a l courts, as well a s the task of defining their jurisdiction, was left to the discretion of Cong ress.”); Cary v

. Curtis
, 4 4 U .S. (3 H o w

. ) 236, 245 (1845) (“[ Cong ress] possess[ es] the sole power of c r eating the t r ibunals ( inferior
to the Supreme Court) for the ex ercise of judicial power

. . . and of withholdi n g j urisdiction from them in the ex act deg rees and character which to Cong ress may see m p r o per for t h e public g ood.”). I n my view, this places Cong ress’s Article I a

nd I I I c o urt-creating p owers o n a special plane in separation of powers terms: T h e p o w er to create inferiorI N R E O Z E N N E 35

c o u rts and define their jurisdiction is perhaps the princi p al check that Cong r ess possesses over the judiciary

. Cong ress may not deleg ate that power out s ide o f itself, and it is no

answer that the judiciary is complicit in its ex ercise. PCAOB
, 561 U.S. at 497 (“[ T] he separation of powers does not depend

. . . on whether ‘the enc r o a ched-upon branch approves the encroachment[ .] ’ ” (quoting New Y o rk v. United States
, 505 U.S. 144, 182 (1992)); W ellness

, 135 S

. C t

. a t 1955 (Roberts, C.J
., d i ssenting ) ( “A branch’s consent to a diminution of its constitutional powers

. . . does not mitig ate the harm or cure the wrong .”).

T h e majority responds with a non sequitur, c ontending
my a pproach “ig nores the B AP’s historically subordinate role within the federal judiciary .” Maj. Op. at 11. Not so. I ag r ee that the bankruptcy c ourts (includi n g t h e B AP, which is a court ) “derive[ ] [their] leg itimacy from the overview

ex e r cised by Article I I I courts.” Maj. Op. at 15. B ut I do not

see how Cong ress’s decision to permit t h e BA P to use the writ power “chip[ s] away at the authori t y of the J udicial B ranch.” Maj. Op. at 15. Does the m a jority really believe that Cong ress could not amend the A l l W rits Act to include the B AP by name witho u t o ffending Article I I I ? S u r p rising ly

, the majority has ex pressed no concern wi t h bankruptcy courts invoking the Al l W rits Act. Surely they

are “courts” established by act of Cong ress. See P a nther Mountain
, 686 F .3d a t 926 ( holding that bankruptcy courts

can issue writs under the All W rits Act); Alderwoods Group
, 682 F .3d at 9 7 2 n

. 2 4 (same); In re Johns-Manville Corp.
, 27 F .3d a t 4 9 (same). B ut perhaps not under the majority ’s ruling

. And to the ex tent t h e majority is concerned about “frustrat[ ing ] our court’s appellate review” of B AP d ecisions, Ma j

. Op. at 1 5, the majority n eeds reminding that it is vacating the B AP’s order

. There is little more that couldI N R E O Z E N N E 36

demonstrate that the B AP remains “subordinate” to us. Maj. Op. at 11.

I do not purport to solve these interesting constituti o n al quandaries r aised by the majority ’s opinion. B ut the majority ’s opinion is a problem. And the questions are both squarely raised and

, u n f

o rtunately

, entirely avoidable. W e

can and should avoid rendering a d ecision that radiates with such constitutional difficulty

.

V

I t is a basic tenet o f b o th statutory interpretation a nd constitutional law that “where an otherwise a cceptable construction of a statute would raise serious constitutional problems,” we must “construe the statute to avoid such problems.” Edward J. DeBartolo C o r p

. v. Fla. Gulf Coast Bldg. & Constr. Trade Council

, 4 85 U .S. 568, 575 (1988). This principle alone would counsel ag a i n s t the majority ’s construction of the All W rits Act. B u t the constitutional avoidance canon only applies when there a r e two plausible reading s of a statute. McFadden v. United States
, 135 S. Ct. 2298, 2307 (2015). “I t has no application in the interpretation of an unambig uous statute s u c h as this one.” Id. (internal quotation marks omitted). There is no reason to read into the All W r i ts A ct the word “directly .” Cong ress e stablished bankruptcy appellate panels, and authoriz ed u s to adapt them
to our needs. W hen Cong ress e stablish e d t h e B AP it necessarily authoriz ed the B AP to “issue all writs necessary

or appropriate in aid of [ its] respective jurisdicti on[ ] a nd
ag reeable to the usag es and p r inciples of law.” 28 U .S.C. § 1651(a).

I respectfully , but emphatically

, dissent.