1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0248p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

In re: C ITY OF D ETROIT , M ICHIGAN , Debtor

.

___________________________________________ W ILLIAM O CHADLEUS , et al. (15-2194); J OHN P. Q UINN (15-2337); D ENNIS T AUBITZ and I RMA I NDUSTRIOUS (15-2353); L UCINDA D ARRAH (15-2371); W ILLIAM D AVIS (15-2379), Appellants ,

v

.

C ITY OF D ETROIT , M ICHIGAN , et al., Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 15-2194/ 2337/ 2353/ 2371/ 2379

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:14-cv-14872—Bernard A. Friedman, District Judge. Argued: June 15, 2016
Decided and Filed: October 3, 2016
Before: BATCHELDER, MOORE, and McKEAGUE, Circuit Judges.

_________________ COUNSEL

ARGUED: Jamie S. Fields, Detroit, Michigan, for Appellants in 15-2194. John P. Quinn, Detroit, Michigan, for Appellant in 15-2337. Dennis Taubitz, Irma Industrious, St. Thomas, Virgin Islands, for Appellants in 15-2353. Ma rc N. Swanson, MILLER CANFIELD PADDOCK & STONE PLC, Detroit, Michigan, for Appellees. ON BRIEF: Jamie S. Fields, Detroit, Michigan, for Appellants in 15- 2194. John P. Quinn, Detroit, Mi chigan, for Appellant in 15- 2337. Dennis Taubitz, Irma Industrious, St. Thomas, Virgin Islands, for Appellants in 15-2353. Heather Lennox, JONES DAY, Cleveland, Ohio, Be th Heifetz, Anthony J. Dick, G. Ryan 

### >Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 2

Snyder, JONES DAY, Washington, D.C., for Appe llees. Lucinda J. Darra h, Detroit, Michigan, pro se, in 15-2371. William Davis, Detroit, Michigan, pro se, in 15-2379.
BATCHELDER, J., delivered the opinion of the court in which McKEAGUE, J., joined. MOORE, J. (pp. 16–29), delivered a separate diss enting opinion.

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. This a ppeal arises out of the City of Detroit, Michigan’s municipal bankruptcy under Chapter 9 of the Bankrupt cy Code, 11 U.S.C. § 109(c). In resolving its bankruptcy, the City crafted a complex network of settlements and agreements
with its thousands of credit ors and stakeholders, memorialized those agreements in a comprehensive Plan, and obtained the bankruptcy c ourt’s ratification of th at Plan in a final Confirmation Order. One aspect of the planinvolved the reduction of certain municipalemployee pension benefits under th e City’s General Retirement System (GRS). Several GRS pensioners, resisting any reducti on in their benefits, challenged the Confirmation Order in the district court. The City moved the district court to dismiss thos e actions as equitably moot and the court agreed, dismissing them pursuant to Fe deral Rule of Civil Procedure 12(b)(1). When those pensioners appealed here, we consolidat ed their appeals and, finding that equitable mootness applies and prohibits their challenge s to the Confirmation Order, we AFFIRM.

I.
The City of Detroit filed for municipal bankruptcy on July 18, 2013, pursuant to Chapter 9 of the Bankruptcy Code, 11 U.S.C. § 109(c). At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow, crumbling infrastructure (e.g., some 78,000 abandoned structures, half classified as “dangerous”; another 66,000 blighted vacant lots; a crumbling water and sewer system; 40% nonfunctioning streetlights; ou tdated computer systems and software), and could not provide “the basic police, fire[,] and emergency me dical services that its residents need[ed] for their basic health and safety.” In re City of Detroit , 504 B.R. 191, 192 (Bankr. E.D. Mich. 2013).Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 3

In bankruptcy, the City crafted a series of “intricate and carefully woven” settlements
with almost all of its creditors and stakeholders. Those settlements were memorialized in the Eighth Amended Plan for the Adjustment of Debt s of the City of Detroit (“Plan”). After extensive hearings, the bankrupt cy court confirmed the Plan in a Confirmation Order dated November 12, 2014.
The appellants here are participants in th e City’s General Retirement System (“GRS”)— City employees, retirees, or bene ficiaries thereof—who oppose the provisions of the Plan that reduce their pension benefits; that is, they want the full benefits the City promised them prior to bankruptcy. The GRS has two components: a trad itional pension plan (“GRS Defined Benefit Plan” or “Pension Plan”) and a 401(k)-style employee-contribution retir ement savings program (“GRS Annuity Savings Fund” or “ASF”). The Cityis the sole sponsor of the Pension Plan and fully responsible for its funding (or deficiency th ereto). The City is not responsible for funding the ASF, but some $387 million of City money had b een wrongly directed into it (and distributed from it) in order to ensure each participant a promised 7.9% annual return regardless of the returns on the ASF investments, and the bankrupt City was obliged to recoup that money. That, however, would be easier said than done given th e magnitude and complex ity of the situation.

Moreover, the Pension Plan was underfunded by some $1.879 billion and the City did not have, and would not have, the resources to fullyfund it over time. The City was therefore faced with having to reduce each GRS pension by 27% . Instead, the City orchestrated the “Grand Bargain,” in which it obtained “outside funding” to bolster the Pension Plan in exchange for a
settlement of GRS claims at le ss than the full promised pension amount. The outside funding, which totaled $816 million, came from agreemen ts by and among the City, the State of Michigan, and certain philanthropic foundations. The “Global Retiree Settlement” between the City and the GRS Board of Trustees 1 reduced all GRS pensions by 4.5% and eliminated cost-ofliving increases; reduced retiree healthcare co verage and eliminated dental, vision, and life

1 The GRS is a separate legal entity; a fiduciary trust acting on behalf of the City to administer the retirement plans. It is a named defendant and a ppellee, but is not a participant in this appeal.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 4

insurance; and set out a mechanism for the pa rtial recoupment of ex cess ASF distributions. 2 The GRS pension claimants (designated “Class 11” for purposes of bankruptcy) voted 73% in favor of accepting the Plan, including th e Grand Bargain and the Settlement. 3

Overall, the Plan eliminated approximately $7 billion in debt and freed approximately $1.7 billion in revenue for reinvestment into C ity services and infrastructure, including public services, blight remediation, information techno logy, and public transportation. The Plan took effect on December 10, 2014, and the City began im plementation immediately. As the district court noted in an opinion dated September 29, 2015, the City had by that date already issued $287.5 million in bonds and $720 million in new not es; irrevocably transferred all Detroit Institute of Art assets to a perpetual charitab le trust; recouped money from all but five ASF account holders; transfe rred certain real property interests pursuant to separate settlement agreements within the Plan; and im plemented a two-year City budget. See In re City of Detroit , No. 14-CV-14872, 2015 WL 5697702, at *3 (E.D. Mich. Sept. 29, 2015). 4 In its briefs on appeal, filed in January and February 2016, the City identified numerous additional aspects of the Plan that have been implemented or comple ted, including: the City issued over $1 billion in bonds; the State of Michigan transferred $195 milli on to the retirement systems; the Detroit
Institute of Art and others tr ansferred $23 million to the retire ment systems; the retirement systems reduced pension amounts as planned in th e Global Retiree Settle ment and adopted new methods of governance and financial oversight; the City optioned the sa le or lease of certain real estate, including the Joe Lewis Arena and the Windsor Tunnel; the emergency manager resigned, restoring day-to-day management to the mayor and city council; the Governor terminated the City’s financial emergency status and removed the City from receivership, though maintaining

2 The district court opinion explains the details of the ASF recoupment process. See In re City of Detroit , No. 14-CV-14872, 2015 WL 5697702, at *2-3 (E.D. Mich. Sept. 29, 2015). It is not necessary to recount that process here, but it does bear mention that it was projected to recover about $190 million, without which the Plan would have required a 13% across-the-board reduction in GRS pensions, rather than the confirmed 4.5% reduction.
3 Class 11 claimants cast 8,541 votes: 6,248 (73%) in favor and 2,293 (27%) against. See Ballot Summary Report, In re City of Detroit , No. 13-53846, Docket No. 6179, p. 19 (Bankr. E.D. Mich., July 21, 2014).
4 The five appeals here came from five separate district court cases and judgments, each with its own docket and case number, but the same judge decided all five and issued consistent opinions that differed only by an appellant’s individualized claim or argument. Unless specifically noted, any difference is immaterial or irrelevant here and we cite only to the opinion from the Ochadleus case, No. 2:14-cv-14872, as representative of all five.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 5

oversight of the City’s finances via the Mich igan Financial Review Commission; the City cooperated in the creation of the Great Lakes Water Authorityto provide water and sewer services; the City established the Beneficiary A ssociations to provide h ealthcare to municipal retirees; the City invested millions in public services, including $8.4 million to the police department, $3.8 million to the fire department, $3.5 million for blight remediation, and $1.9 million for information technology; and the City paid to settle with certain claimholders, including $72 million on the City’s limited-ta x general obligation bonds (Class 7), $288 million on the City’s unlimited-tax gene ral obligation bonds (Class 8), $88 million on certificates of participation (Class 9), $493 million to the Bene ficiary Associations (Class 12), $3.7 million on claims regarding the Downtown Development Authority (Class 13), and some $21 million to
settle other various unsecur ed claims (Class 14).
Several GRS pensioners (Class 11 claimants) a ppealed to the district court, challenging the reduction in their pensions, the ASF Rec oupment, and other things, including a release provision that prevented retirees from asserting claims against the State of Michigan. They urged the court to strike the challenged provisions from the Confirmation Order and remand to the bankruptcy court with instru ctions to exempt pensions from adjustment. In response, the City moved to dismiss the appeals as equitably moot and the court agree d, concluding that “[a]ll three factors of the equitable mootness analysis weigh in favor of dismissing appellants’ appeal as moot: appellants did not obtain a stay; the confirmed Plan has been substantially consummated; and reversal of the Plan would a dversely impact third parties and the success of
the Plan.” In re City of Detroit , 2015 WL 5697702 at *8. Granting the City’s motion, the district court dismissed the appeals pursuant to Federal Rule of Ci vil Procedure 12(b)(1).
When those GRS pensioners appealed here, we consolidated their five separate appeals. 5 While these appellants, together, raise several di verse issues or arguments, the determinative issue is the applicability of the equitable mootne ss doctrine in this case, including challenges to its continued vitality as a prudential doctrine a nd its availability in any Chapter 9 bankruptcy

5 In those five separate appeals, appellant Ochadleu s (15-2194) represented 129 other named appellants; Taubitz (15-2353) represented one other named appellant; and Quinn (15-2337), Darrah (15-2371), and Davis (15- 2379) each represented only themselves. For perspective: a total of 8,541 Class 11 claimants voted on the Grand Bargain and Global Retiree Settlement, meaning these 135 a ppellants represent about 1.5% of the Class 11 pool.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 6

case. Ultimately, therefore, our determination th at equitable mootness applies to these facts and to this Confirmation Order ends this appeal a nd forecloses any other claims or arguments.

II.

We review the district court’ s equitable mootness determination de novo

. In re United Producers, Inc. , 526 F.3d 942, 947 (6th Cir. 2008). Equ itable mootness is not technically
“mootness”—constitutional or otherwise—but is inst ead “a prudential doctri ne that protects the need for finality in bankruptcy proceedings and allows third parties to rely on that finality” by “prevent[ing] a court from unscrambling comp lex bankruptcy reorganizations when the appealing party should have ac ted before the plan became ex tremely difficult to retract.” In re Ormet Corp. , 355 B.R. 37, 40-41 (S.D. Ohio 2006) (relying on In re Grimland, Inc. , 243 F.3d 228, 231 (5th Cir. 2001), and In re PWS Holding Corp. , 228 F.3d 224, 236 (3d Cir. 2000)). That is, unlike conventional mootness, equitable mootness is not concerned with the court’s ability or inability to grant relief ; it is concerned with protecting the good faith reliance interests created by implementation of the bankruptcy plan from being undone afterwards. See In re UNR Indus.,
Inc. , 20 F.3d 766, 769 (7th Cir. 1994) (“There is a big difference between inability to alter the outcome (real mootness) and unwillingness to alter the outcome (‘equitable mootness’).”).
More akin to waiver or forfeiture (or pe rhaps estoppel) than to conventional mootness, equitable mootness is “grounded in the notion that , with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable.” See In re United Producers , 526 F.3d at 947 (internal quotation marks omitted). Stated bluntly, equitable mootness negates appe llate review of the confirmation order or the underlying plan, regardless of the problems therein or the merits of the appellant’s challenge. Cf. In re Made in Detroit, Inc. , 414 F.3d 576, 581 (6th Cir. 2005).
We analyze equitable mootness under a three- part test: (1) whether a stay has been obtained; (2) whether the plan has been “substa ntially consummated”; and (3) whether the relief requested would significantly and irrevocably disrupt the implementation of the plan or disproportionately harm the re liance interests of other parties not before the court. See In reNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 7

United Producers , 526 F.3d at 947-48 (quotation marks and citations omitted). Whether a stay of implementation of the plan has been obtained is significant because:
When an appellant does not obtain a stay of the implementation of a confirmation plan, the debtor will norma lly implement the plan and reliance interests will be created. Thus, the failure to obtain a stay will count against the appellant in determining whether an appeal should be denied on equitable mootness grounds. The failure to seek a stay . . . is not neces sarily fatal . . . [but neither is merely seeking a stay sufficient in and of itself, as] a stay not sought, and a stay sought and denied, lead equally to the implem entation of the plan of reorganization.

Id. at 948 (quotation marks, editorial marks, citations, and paragraph break omitted).

We measure “substantial consummation” by the Bankruptcy Code definition, which
considers the extent of the debt or’s transfer of property, assu mption of responsibilities, and
distribution of assets as prescribed by the plan. See 11 U.S.C. § 1101(2). “If a plan has been substantially consummated there is a greater likelihood that overturning the confirmation plan
will have adverse effects on the success of the plan and on third parties.” In re United
Producers , 526 F.3d at 948. But even af ter substantial consummation, equitable mootness is not necessarily appropriate. Id. The most important factor is whether the relief requested would affect the rights of third parties or the overall success of the plan. Id. This requires a case-bycase assessment of the feasibility and effect of the relief requested, and determination of “whether it amounts to a piecemeal revision of th e plan or a wholesal e rewriting of it.” Id

. In this case, all three factors favor the app lication of equitable m ootness: the appellants did not obtain a stay; the Plan has been subs tantially consummated, inasmuch as numerous significant—even colossal—actions have been unde rtaken or completed, many irreversible; and the requested relief of omitti ng the bargained-for (and by majority vote agreed-upon) pension reduction would necessarily rescind the Grand Bargain, its $816 million in outside funding, and the series of other settlements and agreements contingent upon the Glob al Retiree Settlement, thereby unravelling the entire Pl an and adversely affecting coun tless third parties, including, among others, the entire City population. See In re City of Detroit , 2015 WL 5697702 at *8.

This is not a close call. In fact, the doctrine of equitable mootness was created and intended for exactly this type of scenario, to “prevent[] a court from unscrambling complexNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 8

bankruptcy reorganizations” after “the plan [h as become] extremely difficult to retract.” See Nordhoff Investments, Inc. v. Zenith Elecs. Corp. , 258 F.3d 180, 185 (3d Cir. 2001). The Grand Bargain was contingent on the Global Retiree Sett lement as negotiated. Altering the pension reduction would mean rescinding the Global Retire e Settlement and, consequently, nullifying the Grand Bargain. Given the immensity of the Gr and Bargain, even within this enormous bankruptcy, such a drastic action would unavoidably unravel the enti re Plan, likely force the City back into emergency oversight, and require a w holesale recreation of th e vast and complex web of negotiated settlements and agreements. At this point, the harm to the City and its dependents—employees and stakeholders, agen cies and businesses, and 685,000 residents—so outweighs the harm to these appellants that granting their requested relief and unravelling the Plan would be “impractical, imprude nt, and therefore inequitable.” See In re United Producers , 526 F.3d at 947. In short, this is the scenario that equitable mootness was designed to avoid.

III.
The appellants raise two challenges without re gard to the particular facts of this case. First, they argue that equitable mootness, bein g an abdication of our ju risdiction on prudential grounds, is no longer a viab le doctrine under the Supreme Court’s evolving case law. In the alternative, they argue that equitable mootness does not ap ply in Chapter 9 bankruptcies. 6

A.
The appellants point to recent Supreme C ourt opinions in which the Court reversed judgments that had dismissed cases on pruden tial grounds, and emphasi ze the Court’s language in those opinions about the obligation of the fe deral courts to decide cases within their jurisdiction. See , e.g. , Lexmark Intern., Inc. v. Stat ic Control Components, Inc. , 134 S. Ct. 1377, 1388 (2014) (reversing a dismissa l based on “prudential standing ” or “statutory standing,”

6 A frequent misnomer in the appellants’ briefing warrants mention here: despite their misleading headings and attempts at limiting language, many of the appellants’ specific reasons or arguments against extending equitable mootness beyond its established Chapter 11 context and into Chapter 9 are actually arguments against the viability of equitable mootness at all, in any bankruptcy chapter. If we were to accept these arguments as a reason to preclude equitable mootness in Chapter 9, we would correspondingly be accepting (and endorsing) a reason to abolish equitable mootness altogether. But, as we explain in § III.A, that is something we cannot do. We, therefore, decline to address any of these arguments or reasons individually and instead reject them all categorically under the reasoning in § III.A. In § III.B, we address only the arguments that distinguish Chapter 9 from Chapter 11.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 9

though the issue was whether the statute authorized su it by the named plaintiff); Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2347 (2014) (questioning but declining to “resolve the continuing vitality of the prudential ripeness doctrine,” upon acknowledging its “tension with [the Court’s] recent reaffirmation of the principl e that a federal court’s obligation to hear and decide cases within its jurisd iction is virtually unflagging” (quotation marks and citations omitted)); Zivotofsky v. Clinton , 132 S. Ct. 1421, 1427 (2012) (e mphasizing the narrowness of the judicial-question doctrine, and opining that “the Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid” (quotation marks and citation omitted)).
That is a fair reading of those cases and the inference drawn is not unreasonable: the Supreme Court has expressed disfavor for prudentia l doctrines that abdicate jurisdiction and has emphasized the duty federal courts have to exer cise jurisdiction. But those are not bankruptcy cases and their holdings neitherexpressly nor necessarily exte nd to equitable mootness.
More importantly, even if the Supreme C ourt would abolish equitable mootness, it has not yet done so (nor has any ci rcuit). Equitable mootness is the law of the Sixth Circuit, see In re
United Producers , 526 F.3d at 947, and we continue to apply it, see In re Schwartz , 636 F. App’x 673 (6th Cir. 2016). Consequently, we cannot re ject it or abolish it in this appeal. See Salmi v. Sec’y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985 ) (explaining that one panel cannot overrule the decision of another panel). Equitable mootness is a viable doctrine.

B.
The appellants also argue that even if equi table mootness survives, it does not apply in Chapter 9 cases. 7 As they point out, we in the Sixth Ci rcuit have never before applied equitable mootness in a Chapter 9 case, applying it until now only in Chapter 11 cases. Several other courts have extended it to Chapters 7 and 13, but only three opinions nationwide have ever applied it in Chapter 9, and those did so with little analysis. See Alexander v. Barnwell Cnty. Hosp. , 498 B.R. 550 (D.S.C. 2013); In re City of Vallejo , 551 F. App’x 339 (9th Cir. 2013); In re City of Stockton , 542 B.R. 261, 273-74 (9th Cir. BAP 2015) (citing with approval In re City of

7 See footnote 6, supra

.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 10

Detroit , 2015 WL 5697779, on appeal here, an d rejecting or distinguishing Bennett , see infra , “because the constitutional and political concerns that troubled [it] [we] re not present”).
The appellants, however, rely on the only othe r opinion to consider equitable mootness in the Chapter 9 context, an Alabama district cour t case (currently pending on appeal in the 11th Circuit) that declared equitable mootne ss inapplicable in Chapter 9 cases: Bennett v. Jefferson County , 518 B.R. 613 (N.D. Ala. 2014). In Bennett , when Jefferson County was forced into bankruptcy by the overwhelming cost of its sewer system, one asp ect of its plan was a drastic increase in sewer rates; the Bennett appellants (representing all municipal “Ratepayers” and designated as such) claimed that the increase in rates—without vote or voter approval—violated
the state constitution. Id . at 628-29. Jefferson County moved to dismiss the appeal on the basis of equitable mootness, but the court refu sed, because, among other reasons, the CountyRatepayer relationship was signifi cantly different from the normal debtor-creditor relationship in a Chapter 11 bankruptcy. See id . at 634-35. As the sole public-u tility-sewer-service provider, Jefferson County was a monopoly enterprise and th e Ratepayers were captive customers whose only protection from such increases was the politi cal process (i.e., the right to vote on proposed rate increases and the office holders responsib le), which the bankruptcy order denied them:
The Ratepayers are not investors or shareholders whose stake in this case is limited to the amount of their investme nt; they are citizens of the County dependant [sic] upon the County for provisi on of basic sewer service. As such, they are the revenue source for paymen t of the New Sewer Warrants; however, their interest is not limited to a finite financial amount. Rather , their interest in continuing to receive essential sewer service is not protected by the political system of County governance nor do they have a voice in future rate-making.

Id . at 638 (footnote omitted). The Bennett court denied Jefferson County’s motion to dismiss on the basis of equitable mootness and allowe d the appeal to proceed on the merits. Id. at 640.
Even though the circumstances in Bennett are validly distingui shed from the usual equitable mootness scenario, this does not require the conclusi on that equitable mootness does not apply in any Chapter 9 case. Instead, the better conclusion drawn from Bennett ’s facts is that Jefferson County could not meet the third equ itable mootness factor under a “case-by-case” assessment,” see In re United Producers , 526 F.3d at 948. Because of the unusualNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 11

circumstances, the potential harm to third-party reliance interests from unraveling the Jefferson County plan would not outweigh th e harm inflicted on those captive Ratepayer “creditors” by allowing the plan’s drastic rate increase to go un challenged. Consequen tly, the application of equitable mootness was not appropria te (i.e., not equitable) in that particular fact scenario.
In the present case, the GRS pensioners/appel lants were promised anamount certain and, though perhaps not traditional “creditors” in the most ordinary sense, they are—importantly— not non-party, captive customer s like the Ratepayers in Bennett , at risk of bei ng subjected to an unlimited financial obligation, namely, a 365% rate increase to continue forever. Moreover, unlike the Ratepayers in Bennett who were denied a vote on that increase (that being their primary complaint, in fact), these pensioners, as Class 11 claimants, were given a vote on the pension reduction and 73% of th e Class voted for it. Presumably, the appellants here voted against it, but they were given an opportunity in public h earings to present argument and evidence, and they were given a vote. 8

The facts in Bennett are drastically different from the facts in this case, and Bennett ’s rationale and conclusion are simply not applicab le here, where we do not have a deprivation of the political process, a class of otherwise un involved participants (c aptive customers) as creditors, or imposition of an unlimited price in crease on them. Moreover , one could reasonably
submit that Bennett ’s especially unusual f acts make it a poorly suited case for a universal proclamation that equitable mootness never applies in Chapter 9 bankruptcies. But the Bennett opinion contains no hesitancy or self-restraint, announcing unequivocally that “equitable mootness does not apply to challenges to a Conf irmation Order in Chapter 9 proceedings.”
Bennett , 518 B.R. at 635.
In rejecting Jefferson County’ s contention that equitable mo otness applies “in Chapter 9 appeals exactly as it appl ies in Chapter 11 appeals,” id. , the Bennett opinion touts the differences between Chapter 9 “municipal reorganization” a nd Chapter 11 “general reorganization”: “first,

8 Note that the parameters of these two “votes” are drastically different, in that the vote denied the Ratepayers in Bennett was either a public referendum on the sewer rate increase or a county-wide general election of the responsible public office-holde rs, whereas the vote here was merelya majority vote on the acceptance or rejection of the Global Retiree Settlement by the bankruptcy’s specific “Class 11 claimant” creditors.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 12

the law must be sensitive to the issue of the sovereignt y of the States; [] second, a municipality is generally not a business enterp rise operating for profit[] a nd there are no stockholders.” Id . at 636 (quotation marks, editorial marks, citati ons, and footnote omitted). And, third, the “prudential concerns” or “underl ying policies” are different: th e “policies underlying Chapter 11 are preserving going concerns and maximizing prope rty available to satisfy creditors,” whereas “[t]he policy underlying Chapter 9 is not future profit, but rather continued provision of public
services.” Id. (quotation marks, editorial marks, and citations omitted). This is an accurate description of differences , to be sure, but the Bennett opinion never explains why these differences matter ; why, based on these differences, would equitable mootness apply in Chapter 11 but not Chapter 9? 9

The simple answer is that these differences do not matter. The fact that the debtor is a municipality, with state sovereignty, 10 rather than a business enterprise does not reduce the municipal debtor’s rights in bankruptcy. Actuallythe opposite is true: “Many of the protections afforded to creditors in the other [bankrupt cy] chapters are missing in [C]hapter 9.” In re City of Desert Hot Springs , 339 F.3d 782, 789 (9th Cir. 2003) (cited in the Bennett opinion). “Chapter 9 provides a [municipal] debtor wi th an array of bankruptcy power s to enable it to achieve financial rehabilitation with very few, if any, corresponding limitations and duties of the type to

9 The Bennett opinion does explain at length why one difference matters and, ultimately, relies exclusively on that one difference to justify its rejection of equitabl e mootness; that difference is that municipalities, unlike business enterprises, provide public servic es and engage in the political process. See Bennett , 518 B.R. at 636-38; at 636 (“the interest of the public in the provision of governme ntal services”); at 637 (“place substantial future financial obligations on the citizens of Jefferson County without representation”); at 637 (“the County’s ceding of its future authority to set sewer rates to the bankruptcy court . . . would not arise in private contracts under a Chapter 11 plan”); at 638 (under the plan, the citizen s’ “interest in continuing to receive essential sewer service is not protected by the political system of County governance nor do they have a voice in future rate-making”). Importantly, that is the very difference discussed in the preceding four paragraphs above, the difference that necessarily distinguishes Bennett from the present case. Because this c oncern about public services and political process does not arise in ever y Chapter 9 bankruptcy case—as it clearly does not arise in the pres ent case—it is not a valid reason to conclude that equitable mootness does not apply in any Chapter 9 bankruptcy case.
10 Because Bennett ’s forceful but aimless language about this sovereignty issue does not articulate why it matters to the applicability of equitable mootness, and therefore could be misread as questioning the constitutionality of municipal bankruptcy itself, see 518 B.R. at 636 (“Chapter 9 places federal law in juxtaposition to the rights of states to create and govern their own subdivisions”), it bears mention that Chapter 9 municipal bankruptcy is constitutional. See United States v. Bekins , 304 U.S. 27, 51 (1938); see also Franklin Calif. Tax-Free Trust v. Puerto Rico , 805 F.3d 322, 327 (1st Cir. 2015) ( affirmed , 579 U.S. --, 136 S. Ct. 1938 (2016)); In re City of Detroit , 504 B.R. 97, 136-54 (Bankr. E.D. Mich. 2013) (analyzing the constitutionality of Chapter 9 in this case).Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 13

which a Chapter 11 debtor is subject.” Id . (quotation marks, editorial marks, and citations omitted). That is, the statutory differences ge nerally favor the Chapter 9 municipal debtor.

Moreover, the fact that a m unicipality does not operate for pr ofit, have shareholders, or risk liquidation (factors warranti ng a plan’s “maximizing property available to satisfy creditors” upon liquidation) does not mean that a municipality has any less interest in finality or good faith reliance on the effectuation of its bankruptcy plan. In this case, the City of Detroit not only had numerous stakeholders and employees—on a scale equivalent to even a very large business enterprise—it also had over 100,000 creditors an d 685,000 residents relying on its Plan. As the district court put it: “If the inte rests of finality and reliance are paramount to a Chapter 11 private business entity with investors, shareholders, and employees, [thus justifying equitable mootness,] then these interests surely apply with greater fo rce to the City’s Chapter 9 Plan, which affects
thousands of creditor s and residents.” In re City of Detroit , 2015 WL 5697702 at *5.
On appeal, the appellants attempt to complete Bennett ’s reasoning as to why, based on the differences between Chapter 11 and Chapte r 9, equitable mootness should apply in Chapter 11 but not Chapter 9. They have three basic theories. In one, they argue that the purpose of equitable mootness is to protect a business in Chapter 11 reorganizatio n from the “catastrophic consequence” of compelled liquidation and, because liquidation is not anoption in Chapter 9, equitable mootness does not apply in Chapter 9. This is not persuasive. We do not agree that protection against liquidation is the sole purpose of equitable mootness, or even a necessary purpose. Rather, the dual purposes most comm only attributed to equ itable mootness are to achieve finality in bankruptcy proceedings and to protect the good faith reliance interests created by implementation of the bankruptcy plan. But as we have already e xplained, these purposes apply with as much force in Chapter 9 case s—particularly this one—as in Chapter 11, and possibly more.
Their second theory is premised on the f act that “substantial c onsummation,” the second element of equitable mootness, is a term sp ecifically defined in Chapter 11 for Chapter 11, seeNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 14

11 U.S.C. § 1101(2), 11 but does not appear in Chapter 9, see 11 U.S.C. §§ 103(f), 103(g), & 901(a). Thus, they argue that, because “subst antial consummation” is required for equitable mootness but omitted from Chapter 9, the entire doctrine of equitable mootness is barred from Chapter 9. But equitable mootness is a doctrine outside of the Code entirely, both Chapters 11 and 9. It did not require, at conception, any c odified definitions or terms; it did, however, require, as a qualifying element, a conceptual mean s “to determine the extent to which the plan ha[d] progressed,” In re United Producers , 526 F.3d at 948, and the means chosen is the § 1101(2) definition of substantial consummation. To be sure, the court could have crafted its own definition, adopted one from elsewhere (such as contract or tort law) , or even appropriated the § 1101(2) language without citation. Simply put , we cannot agree that the use of a codified definition as an element necessarily places th e entire non-Code doctrine within the exclusive confines of that definition’s particular Code chapter. Rather th an restrict equitable mootness to Chapter 11, we would be better served by me rely removing the citation to § 1101(2) and allowing the written definition to stand on its own terms. On its own terms, “substantial consummation” applies just as well in Chapte r 9 circumstances as it does in Chapter 11. 12

The third theory on which the appellants proceed starts with the fact that, while Chapter 11 empowers the court to modify the plan, Chapter 9 authorizes only the de btor municipality to modify the plan; the court cannot. See 11 U.S.C. §§ 941, 942. From this they argue that a debtor municipality could refuse all but the most extr eme modification, one th at would necessitate a wholesale rewriting of the plan and detrimentall y affect the rights of third parties, thereby satisfying the main equitable mootness element in any Chapter 9 case. But such a refusal would be an act of bad faith, if the claimants were to seek only a “piecemeal revision” of the plan (that would neither disrupt its overall implementation nor harm the re liance interests springing from it) but the debtor municipality stubbornly and without cause refuse s that modification. So this

11 This provision says: “In this chapter [Chapter 11] . . . ‘substantial consummation’ means--(A) transfer of all or substantially all of the property proposed by the plan to be transferred; (B) assumption by the debtor or by the successor to the debtor under th e plan of the business or of the management of all or substantially all of the property dealt with by the plan; and (C) commencement of distribution under the plan.” 11 U.S.C. § 1101(2).
12 Another way of looking at this is to recognize, as the appellants themselves have in their briefs, that Congress intended § 1101(2) to apply to specific Code provisions establishing cause for conversion or dismissal, § 1112(b)(4)(M), and limiting the time for plan modification, § 1127(b), not to equitable mootness.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 15

argument is that the municipal de btor could act in bad faith and the court w ould be powerless to stop it. We are confident that a court would r ecognize such obvious bad fa ith misconduct, or the appellant would bring it to the court’s attention, and that the court could capably determine what lesser modification a debtor municipality could enact if so inclined. Moreover, given that equitable mootness is an equitable doctrine, the court would be oblig ed to fully consider that bad
faith misconduct.
Ultimately, we do not find any of these three theories any more persuasive than Bennett itself, which we do not find compelling in the present circumstances. Considering the foregoing and the reasons stated by the dist rict court, we conclude that equitable mootness applies to Chapter 9 cases just as it applies to Chapter 11. In fact, considering the particular facts of this case, equitable mootness likely applies “with great er force to the City’s Chapter 9 Plan, which
affects thousands of cr editors and residents,” see In re City of Detroit , 2015 WL 5697702 at *5.

IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 16

_________________ DISSENT

_________________ KAREN NELSON MOORE, Circuit Judge, disse nting. Judicial restraint is an undeniable virtue, but its pursuit sh ould not lead to judicial abdi cation. This case illustrates how
a decision not to decide a case can be the most consequential decision of all.
As every first-year law student learns, it is our job as judges “to say what the law is.” Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803). W ith this power, however, comes great responsibility. Cf. Kimble v. Marvel Entm’t, LLC , 135 S. Ct. 2401, 2415 (2015). At times, we must recognize our own limits and decline to decide matters that are properly left to another day or a more concrete dispute, e.g. , North Carolina v. Rice , 404 U.S. 244, 246 (1971) (prohibition on deciding moot cases); Muskrat v. United States , 219 U.S. 346, 354, 357–58 (1911) (prohibition on giving advisory opinions), or avoid those issues that fall within the province or expertise of another branch of government, see Baker v. Carr , 369 U.S. 186, 217 (1962) (courts should avoid deciding “political questions”). Often, however, we must decide the hard cases— even when we would rather not, and even if the legally correct decision results in an outcome
that we dislike.
The current trend at the Supreme Court is to ward a greater recognition of our “virtually unflagging obligation . . . to exercise the jurisdiction given [us].” Quackenbush v. A llstate Ins.
Co. , 517 U.S. 706, 716 (1996) (first alte ration in original) (quoting Colorado River Water
Conservation Dist. v. United States , 424 U.S. 800, 821 (1976)). Where once we relied on “prudential” doctrines that used jurisdictional jargon to justify deciding no t to decide a case, e.g. , Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11–12 (2004), the Supreme Court is now skeptical of such self-imposed straitjackets, see Lexmark Int’l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377, 1386 (2014). At bottom, th is is a recognition that it is rarely our job as judges to decline to exercise our judici al power in a case that is otherwise within our jurisdiction. “Just as a court cannot apply its independent policy judgmen t to recognize a cause of action that Congress has denied, it cannot lim it a cause of action that Congress has createdNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 17

merely because ‘prudence’ dictates.” Lexmark , 134 S. Ct. at 1388 (internal citation omitted). Deciding not to decide can thus be a form of judicial overreac h, not restraint. Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 404 ( 1821) (“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that wh ich is not given. The one or the other would be treason to the constitution”); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans , 491 U.S. 350, 359 (1989) (“Underlying these assertions is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.”).

In its zeal to avoid the merits of this case, the Majority extends an already questionable prudential doctrine to a context in which it has no place. This is not only a derogation of our “virtually unflagging obligation” to decide cases within our jurisdiction, Quackenbush , 517 U.S. at 716 (quoting Colorado River , 424 U.S. at 821), but it has re al-world consequences for the litigants before us—retirees who spent their live s serving the people of Detroit through boom and bust, and who feel that the City’s bankruptcy wa s resolved through a game of musical chairs in which they were left without a se at. These litigants believe that their rights were violated by the agreement that resulted in the settlement of Detroit’s bankruptcy—the largest municipal bankruptcy in our nation’s histor y. By declining to review the bankruptcy court’s assessment of these claims, the district court and the Majority en sure that they will never be heard by an Article III judge. Although I do not doubt the expertise that a bankruptcy judge brings to a case of this magnitude and complexity, having one’s case d ecided by an Article III judge is no mere formality. The protections of Article III “help to ensure the integrity and independence of the Judiciary,” Wellness Int’l Network, Ltd. v. Sharif , 135 S. Ct. 1932, 1938 (2015), and Article III supervision of bankruptcy judges is key to the constitutionalit y of the bankruptcy-court system that adjudicated the retirees’ claims, id. at 1946.
The doctrine that the Majority uses to avoi d the retirees’ legal claims is “equitable mootness.” As applied here, equitable mootness suggests that the importance of adjudicating the retirees’ rights pales in comparison to the importance of protecting the e xpectations of lenders
and others who have chosen to rely on Detroit’s bankruptcy plan before appellate challenges to it were resolved. I fear that using such a justification to brush aside the retirees’ legal claims willNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 18

leave them with the impression th at their rights do not matter. That the doctrine used to avoid their claims is a judicial invention with almo st no legal basis only pours salt on the wound. Whatever the merits of the retirees’ claims, th is is lamentable, and I respectfully dissent.

I.
The doctrine of equitable mootness hypothesi zes that many will re ly on a bankruptcy plan after it has been confirmed by a bankruptcy c ourt, but before an appeal of that confirmation has been resolved. Equitable mootness suggests that protecting these reliance interests can be important enough that an appeal contesting the c onfirmation of a bankruptcy plan should not be heard. It is, as then-Judge Alito put it, a “curious doctrine,” which “permit[s] federal district courts and courts of appeals to refuse to en tertain the merits of liv e bankruptcy appeals over which they indisputably possess statutory jurisdiction and in wh ich they can plainly provide
relief.” In re Continental Airlines , 91 F.3d 553, 567 (3d Cir. 1996) (en banc) (Alito, J., dissenting), cert. denied , 519 U.S. 1057 (1997). Despite the name, equitable mootness bears no relation to “mootness.” Indeed, in an equitably moot appeal, the relief sought is the opposite of moot—the consequences of granting it would be so great that they are deemed inequitable. Nor is equitable mootness the same as “statutory mootness,” which applies when certain provisions of the bankruptcy code specifically bar appeals from certain un-stayed bankruptcy-court orders. See, e.g. , In re Made in Detroit, Inc. , 414 F.3d 576, 580–83 (6th Cir. 2005).
Although the doctrine of equitable mootne ss has been adopted by our circuit—and, I admit, every other circuit to consider its vi tality—its legal foundations are shaky, at best. I recognize that our panel is bound to our precedent applying the doctr ine, but the City of Detroit does not request a straightforward application of that precedent. Rather, the City asks us to extend the doctrine from its roots in Chapter 11 of the Bankruptcy Code to a case arising under the municipal-bankruptcy provisions of Chapter 9. The Majority agrees to do so, holding that the same need to protect reliance interests that motivated our adoption of the doctrine in Chapter 11 cases are present in Chapter 9 cases. That misses the point. Equitable mootness cannot apply every time that a district court’s decision engenders str ong reliance interests; if that were the case, it could apply to every appeal we hear. Ra ther, there must be some legal basis for us toNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 19

decline to hear appeals that may upset such reliance interests in the first place. Although there is but a thin veneer of legal grounding for such a doctrine in Chapter 11 cas es, this justification rubs off when the case is a Chapter 9 bankruptc y. I begin by analyzing in Part A the meager textual basis proffered for the e quitable-mootness doctrine. I th en turn in Part B to other concerns with the doctrine. In Part C, I ex plain why these concerns, along with the specific context of Chapter 9, suggest that we are neither bound nor able to hold that equitable mootness applies to Chapter 9 cases.
A. Equitable Mootness Is Not Just ified by the Bankruptcy Code.
Our circuit’s decisions adopting equitable mootness provide litt le explanation of the legal basis for the doctrine, so I begin with an overv iew of the doctrine’s hist ory. Equitable mootness was initially grounded in the 1976 ve rsion of Bankruptcy Rule 805, wh ich had the same effect as current provisions of the Bankruptcy Code codified at 11 U.S.C. §§ 363(m) and 364(e):
Unless an order approving a sale of pr operty or issuance of a certificate of indebtedness is stayed pending appeal, th e sale to a good faith purchaser or the issuance of a certifi cate to a good faith holde r shall not be affect ed by the reversal or modification of such order on appeal , whether or not the purchaser or holder knows of the pendency of the appeal.
In re Roberts Farms, Inc. , 652 F.2d 793, 796 (9th Cir. 1981) (quoting Fed. R. Bankr. P. 805 (1976)). In 1981, the Ninth Circuit suggested th at this Rule embodied a broader policy that could be applied to bar appeals from an orde r confirming a bankruptcy plan of reorganization where certain “property transactions do not sta nd independently and apart from the plan of arrangement.” Id. at 797. Although this de cision was later cited to support the denial of appellate review of reorganizati on plans without analysis of whether they were intertwined with property transactions that could not be disputed as a matter of statute, Roberts Farms is best interpreted as a limited decision that stands for th e proposition that appeals of orders confirming reorganization plans may “not be entertained [when] no relief [is] practicable as a result of the many post-confirmation transactions that were irreve rsible due to this provision of former Rule
805.” Continental Airlines , 91 F.3d at 569 (Alito, J., dissenting).Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 20

Despite this seemingly clear way to cabin Roberts Farms , the Seventh Circuit subsequently constructed a fuller explanation for the budding doctrine of equitable mootness, relying on “[s]everal provisions of the Bankruptcy Code . . . [tha t] provide that courts should keep their hands off consummated transactions.” In re UNR Indus., Inc. , 20 F.3d 766, 769 (7th Cir.), cert. denied , 513 U.S. 999 (1994). First, it pointed to 11 U.S.C. § 363(m), which “ says that the reversal of an order authorizing the sale or lease of property of an estate ‘does not affect the validity of a sale or lease under such authoriza tion to an entity that purchased or leased such property in good faith, whether or not such ent ity knew of the pendency of the appeal.’” Id. (quoting 11 U.S.C. § 363(m)). Second, the Se venth Circuit pointed to 11 U.S.C. § 1127(b), which “dramatically curtails the power of a bankr uptcy court to modify a plan of reorganization
after its confirmation and ‘substantial co nsummation’”—although the Seventh Circuit acknowledged that § 1127(b) “does not place any lim it on the power of the court of appeals.” Id. (quoting 11 U.S.C. § 1127(b)). From these two provisions, the Seventh Ci rcuit divined a policy in favor of “preserving intere sts bought and paid for in relia nce on judicial decisions, and avoiding the pains that attend any effort to unscramble an egg.” Id. This policy, the Seventh Circuit held, was “so plain and so compelling that courts fill the interstices of the Code with the same approach.” Id.
The doctrine quickly made its way to our ci rcuit, although we have never examined the legal basis for it. In an unpublished decision in1995, we applied what seemed to be equitable mootness, holding that a bankrup tcy appeal was moot because “[ i]t would be a hardship and unfair to all parties to go back [on the reorganization plan],” and equating this to a finding that “this court is without the ability to provide the relief requested.” Bennett v. Veale , Nos. 93-3016, 93-4180, 1995 WL 385147, at *2–3 (6th Cir. June 27, 1995). Later that year, we were confronted with an equitable-mootness argument, but concluded that “[t]he record in this case is inadequate to sustain the [defenda nt’s] equitable estoppel argument.” City of Covington v. Covington Landing Ltd. P’ship , 71 F.3d 1221, 1226 (6th Cir. 1995). We nevertheless suggested that equitable mootness applie d to Chapter 11 appeals. Id. at 1225 (“A growing number of cases outside this circuit recognize that ‘a plan of reorganiza tion, once implemented, should be disturbed only for compelling reasons.’” (quoting UNR Indus. , 20 F.3d at 769)). We applied theNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 21

doctrine in 1998, relying on Bennett , City of Covington , and the Seventh Circuit’s decision in
UNR

. See In re Eagle Picher Indus., Inc. , Nos. 96-4309, 97-4260, 1998 WL 939869, at *4–5 & nn.7–8 (6th Cir. Dec. 21, 1998). 1 In recent years, the doctrine has become embedded in our case law, although we have yet to explore its legal basis in any detail, relying instead on our
decision in City of Covington

. See In re Schwartz , 636 F. App’x 673, 675–77 (6th Cir. 2016); In re United Producers, Inc. , 526 F.3d 942, 947 (6th Cir. 2008); In re Am. HomePatient, Inc. , 420 F.3d 559, 563 (6th Cir. 2005), cert. denied , 549 U.S. 942 (2006).
Other circuits have adopted the doctrine withsimilarly minimal exploration of its legal
basis. See In re Semcrude, L.P. , 728 F.3d 314, 317 (3d Cir. 2013) (“C ourts have rarely analyzed the source of their authority to refuse to h ear an appeal on equitable mootness grounds.”). Indeed, “[a]lthough the equitable mootness doctrine is embraced in every circuit, the rationale underlying the doctrine is unsettled at best.” Ryan M. Murphy, Equitable Mootness Should Be Used as a Scalpel Rather than an Axe in Bankr uptcy Appeals, 19 J. Bankr. L. & Pract. 1 Art. 2 (2010). At a minimum, as the Solicitor General wrote in unsuccessfully seeking certiorari on the issue, the doctrine “is a relative ly recent judicial construct of questionable foundation.” Pet’n for a Writ of Certiorari, United States v. GWI PCS 1, Inc. , No. 00-1621, 2001 WL 34124814, at *22 (Apr. 2001). Only a handful of decisions have analyzed its basis, an d the Seventh Circuit’s statutory-gap-filling rationale from UNR remains “[t]he most plausible basis.” In re Semcrude , 728 F.3d at 317.
Given the dearth of explanation of the legal basis for the equitable-mootness doctrine, criticism has begun to mount. This criticism focuses on the doctrine’s questionable textual moorings: “Although the Bankruptcy Code forbids a ppellate review of certain un-stayed orders and restricts post-confirmation plan modifications, it does not expressly limit appellate review of plan confirmation orders.” In re Pacific Lumber Co. , 584 F.3d 229, 240 (5th Cir. 2009) (footnotes omitted). Judge Krause recently put it best: “[A]s courts and litigants . . . have struggled to identify a statutory basis for the doctrine, it has beco me painfully apparent that there

1 In 1999, we declined to dismiss an appeal as equitably moot, but di d so because the relief sought would not upset the bankruptcy plan. See In re Arbors of Houston Assocs. Ltd. P’ship , No. 97-2099, 1999 WL 17649, at *2–3 (6th Cir. Jan. 4, 1999).Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 22

is none.” In re One2One Commc’ns, LLC , 805 F.3d 428, 438 (3d Cir. 2015) (Krause, J., concurring).

The Seventh Circuit’s UNR decision does not supply a persuasive explanation of the
doctrine’s source. Th e provisions on which UNR was based are specifically targeted, and do not apply to orders confirming bankruptcy reorgani zation plans. 11 U.S.C. § 363(m) provides a basis for finding statutory mootness when an appeal is from an un-stayed order authorizing the bankruptcy trustee to sell or lease property from the debtor’s estate. See Made in Detroit , 414 F.3d at 580–83. And 11 U.S.C. § 1127(b) merely pr ovides that “[ t]he proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan,” but says nothing about the authority of the
district or circuit court to modify a plan due to a legal infirmity in its confirmation.
See One2One , 805 F.3d at 443–44 (Krause, J., concurring) (“Section 1127(b) provides even less support for equitable mootness, as it only restricts a party’s ability to modify a plan before confirmation; it says nothing about the powers of bankruptcy courts or appellate courts.”). If anything, the existence of such narrow provisions withholding review or precluding
modification in certain circumstan ces suggests “[u]nder the maxim of expresio unius est exclusio
alterius ,” that “Congress’s ex press inclusion of two bankrupt cy-law exceptions to appellate review indicates an intent to preclude recogniti on of others.” Pet’n for a Writ of Certiorari, United States v. GWI PCS 1, Inc. , No. 00-1621, 2001 WL 34124814, at *23 (Apr. 2001); see also One2One , 805 F.3d at 444 (Krause, J., concurring ) (“Because Congress specified certain
orders that cannot be disturbed on appeal absent a stay, basic canons of statutory construction compel us to presume that Congress did not intend for other orders to be immune from appeal.”).
Not only is it a stretch to find textual suppo rt for equitable mootness, but statutory provisions regarding bankruptcy ap peals arguably preclude the doc trine. Congress has plainly authorized appeals from confirma tion orders, 28 U.S.C. §§ 157–158, so UNR ’s federal-commonlaw theory suggests that federal courts may refu se to hear appeals that are plainly permitted by statute solely because 11 U.S.C. §§ 363(m) a nd 1127(b) imply a general policy against upsetting reliance interests. This is far from the usual situation in which a federal court is permitted to exercise its common-law-making authority “to fill the interstices of a pervasively federalNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 23

framework” as a result of “an implied delega tion by Congress of lawmak ing authority to the
federal courts.” 19 Charles AlanWright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman, and Catherine T. Struve, Federal Practice and Procedure § 4516 (2d ed. 2016). Such congressional intent is wholly lacking here, and “[w]hile the federal courts must fill statutory gaps in some exceptional circumstances, we may not stretch a statute to create such gaps . . . .” One2One , 805 F.3d at 444 (Krause, J., concurring) (internal citation omitted).
In sum, the doctrine of equitable mootness enjo ys minimal textual support, if any; at the same time, it contradicts the relevant appellate-ju risdiction statutes and pu rports to authorize the making of federal common law desp ite the complete lack of evid ence that Congress intended to delegate such authority to the cour ts. This is not a strong foothold.
B. Equitable Mootness Is an Inappropriat e Prudential Doctrine that Upsets the Constitutional Balance on which the Bankruptcy-Court System is Based. Applying a doctrine that has no ba sis in the text of any statute or in Article III to avoid hearing appeals from bankruptcy-court decisions also raises separation- of-powers concerns. Divorced as it is from any statut ory basis, equitable mootness is nothing but a prudential doctrine of “judicially self-imposed limits.” Newdow , 542 U.S. at 11 (quoting Allen v. Wright , 468 U.S. 737, 751 (1984)) (discussing prudential standing); see Nordhoff Invs., Inc. v. Zenith Elec. Corp. , 258 F.3d 180, 184 (3d Cir. 2001) (the doctrine “is mo re accurately denominated as ‘prudential mootness’” (quoting In re Box Bros. Holding Corp. , 194 B.R. 32, 45 (Bankr. D. Del. 1996))). However “prudential” equitable mootness may be, it operates to cut off enti rely a litigant’s right to appeal in a case that would otherwise be w ithin our appellate jurisdiction. Such a selfimposed straitjacket contradicts ou r “‘virtually unflagging obligation’ to exercise the jurisdiction that we have been given.” Continental Airlines , 91 F.3d at 568 (Alito, J., dissenting) (quoting
Colorado River , 424 U.S. at 817). Although equitable- mootness is imposed by judges on ourselves, it is no less an affront to the separati on of powers than a doctrine usurping jurisdiction that Congress never provided. See Cohens , 19 U.S. (6 Wheat.) at 404 (“We have no more right to decline the exercise of jurisdiction which is gi ven, than to usurp that which is not given. The one or the other would be treason to the constitution”).Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 24

Similar concerns with decisions not to decide cases properly within a court’s jurisdiction have led the Supreme Court to cast doubt on other “p rudential” doctrines that are not based in the text of any statute or in Article III princi ples. For example, the Supreme Court recently described a request “that we shoul d decline to adjudicate [a] clai m on [standing] grounds that are ‘prudential,’ rather than constitutional” as “in so me tension with our recent reaffirmation of the principle that ‘a federa l court’s obligation to h ear and decide’ cases within its jurisdiction ‘is virtually unflagging.’” Lexmark , 134 S. Ct. at 1386 (quoting Sprint Commc’ns, Inc. v. Jacobs , 134 S. Ct. 584, 591 (2013)); see also Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2347 (2014) (rejecting a “prudential ri peness” argument as also “in some tension with our recent reaffirmation of the principle thata federal court’s obligation to he ar and decide cases within its jurisdiction is virtua lly unflagging” (quoting Lexmark , 134 S. Ct. at 1386)). “Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, it cannot limit a cause of action that Congress has created merely because ‘prudence’
dictates.” Lexmark , 134 S. Ct. at 1388 (internal citation omitted). This trend “has placed the continuing vitality of the prudential aspects of standing and ripeness . . . in doubt.” Kentucky v. United States ex rel. Hagel , 759 F.3d 588, 596 n.3 (6th Cir. 2014). In my view, this suggests that our equitable-mootness doctrine is an overreach.
Nor am I convinced by the City’s argument th at equitable mootness can be based in the same equitable powers that underlie the Supreme Court’s abstention doctrines. Those doctrines are an exception to our “virtually unflagging ob ligation” to hear cases within our jurisdiction, Quackenbush , 517 U.S. at 716 (quoting Colorado River , 424 U.S. at 821), and they arise “in otherwise ‘exceptional circ umstances,’ where denying a federal forum would clearly serve an important countervailing interest,” id. (quoting Colorado River , 424 U.S. at 813) (emphasis added). It is within that fe deralism-protecting frame that the Supreme Court has discussed the authority of a federal court “to decline to exercise its jurisdic tion when it ‘is asked to employ its historic powers as a court of equity.’” Id. at 717 (quoting Fair Assessment in Real Estate Ass’n, Inc. v. McNary , 454 U.S. 100, 120 (1981) (Brennan, J., conc urring)). The ab stention doctrines that grow out of this bear little resemblance to equitable mootness. Fo r one, they are generally based at least in part on federalism concerns that are not present in equitable-mootness cases.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 25

Additionally, they are abstention doctrines, not abdication doctrines. See One2One , 805 F.3d at 440 (Krause, J., concurring). The resu lt of equitable mootness is that no court will hear the issue; abstention doctrines counsel in favor of deferring to a differe nt forum. “[W]here there is no other forum and no later exercise of jurisd iction . . . relinquishing jurisdiction is not abstention; it’s abdication.” Id.
A final concern with equitable mootness is that it undermines the delicate constitutional balance on which bankruptcy adjudication is based. See id. at 444–46 (Krause, J., concurring). Bankruptcy courts are given the authority to “hear and determine all cases under title 11 and all core proceedings arising under title 11 . . . s ubject to review under section 158,” 28 U.S.C. § 157(b)(1), which provides that “[t]he district c ourts of the United States shall have jurisdiction to hear appeals . . . from final judgments, orde rs, and decrees” of bankruptcy courts, 28 U.S.C. § 158(a)(1), and that “[t]he courts of appeals shall have jurisd iction of appeals from all final decisions” of district courts in such appeals, 28 U.S.C. § 158(d)(1). Th is right to review in Article III courts remains key to the Supreme Court’s decisions setting forth the limitations on a bankruptcy court’s author ity to decide cases. See, e.g. , Wellness , 135 S. Ct. at 1944 (“allowing Article I adjudicators to decide claims su bmitted to them by consent does not offend the separation of powers so long as Article III c ourts retain supervisory authority over the process ” (emphasis added)). This flows from the separa tion-of-powers concerns that the bankruptcy-court system raises: “Even if a case is tried in the first instance in a non-article III tribunal, a separation-of-powers interest remains in ensuring appellate review by an article III court.” Richard H. Fallon, Jr., Of Legislative Courts, Administ rative Agencies, and Article III , 101 Harv. L. Rev. 915, 939 (1988). The problem with equ itable mootness is not only that it cuts off entirely the right to appeal to an Article III court, but that “it effectively delegates the power to prevent that review to the very non-Article II I tribunal whose decision is at issue” because “bankruptcy courts control nearly all of the variables” that are considered in assessing whether an appeal is equitably moot. One2One , 805 F.3d at 445 (Kraus e, J., concurring); see also Nordhoff , 258 F.3d at 192 (Alito, J., concurring in the judgment) (“[E]quitable mootness . . . can easily be used as a weapon to prevent any a ppellate review of ba nkruptcy court ordersNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 26

confirming reorganization plans. It thus places far too much pow er in the hands of bankruptcy judges.”).
C. No Legal Basis Exists for Appl ying Equitable Mootness to Chapter 9.
The flaws in our equitable-mootness doctrine ar e many. It has little ba sis in the text of the Bankruptcy Code, creates prec isely the type of prudential lim itation on our jurisdiction that the Supreme Court has critici zed, and undermines the delicate constitutional balance on which the bankruptcy-court system is based. These con cerns suggest that it is high time for us to
review the doctrine’s basis as a full court sitting en banc. 2 For now, however, our panel is bound by our precedent applying the doctrine of equitable mootness. But in this case, we are asked to
extend that questionable doctrine to a new area. Although we must extend even a bad precedent when no principled basis exists for distinguishi ng between the context in which it arose and that to which we are asked to extend it, see, e.g. , United States v. Honeycutt , 816 F.3d 362, 381–83 (6th Cir. 2016) (Moore, J., concurring in th e judgment) (critiquing precedent regarding the interpretation of a federal forfeiture statute, but agreeing that it must be applied to “a statute involving identical language”), petition for cert. filed , 2016 WL 4088374 (U.S. July 29, 2016) (No. 16-142), I do not believe that this case pres ents such a situation. Our precedent adopting the doctrine of equitable mootness in Chapter 11 cases gives little hint of the legal basis for its adoption, but what can be discerned from those opinions suggests that th e doctrine grows out of statutory provisions thatdo not apply to Chapter 9 of the Bankruptcy Code.
The Majority reads our precedent extremel y broadly to demand the application of equitable mootness in any case invo lving strong reliance interests. I cannot discern the basis for

2 I also note that the policy justifications for equitable mootness are no t necessarily as strong as courts have presumed. The idea is that the relian ce interests generated by a bankruptcy court’s confirmation of a reorganization plan can be so strong that it becomes inequitable to upset them. Yet, in any other context, we would not hesitate to add that a party should not rely bli ndly on the decision of a trial court wh en timely appellate proceedings are commenced. Those relying on a bankruptcy court’s decision should be aware of the risk that an appeal will disrupt it. Nonetheless, equitable mootness “rests on the notion that, once a plan has taken effect, its beneficiaries—even parties in the bankruptcy court who pushed for confirmation over the legal objections of dissenting creditors—are entitled to rely on the challenged plan’s not changing, whethe r or not it was infected by legal error.” Pet’n for Writ of Certiorari, Aurelius Capital Mgmt., LP v. Tribune Media Co. , No. 15-891, 2016 WL 159570, at *2 (Jan. 11, 2016), cert. denied , 136 S. Ct. 1459 (2016). If ever we reconsider the equitable-mootness doctrine, the reasonableness of the reliance interests the doctrine seeks to protect should be explored in much greater depth.Nos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 27

such a broad rule from our precedent, which app lied cases from other circuits without adding analysis. I also fear that the Majority’s approach will be impossible to cabin because all final
decisions of district courts create reliance interests and all appeals have the potential to upset those interests. The Majority’s rationale would appear to create a new requirement for appellate review in every case: That th e appeal not risk upsetting too strong a reliance interest. Where this would end I do not know, but cases have al ready begun to illustrate the breadth of the doctrinal creep that we could face. The Seventh Circuit has applied equitable mootness to an appeal seeking to challenge a forfeiture settlement arising out of an individual’s conviction for a complex RICO violation, United States v. Segal , 432 F.3d 767, 773–74 (7th Ci r. 2005), and the Third Circuit was even asked to apply the doctrine as a basis for cutting off appeals in complex class actions, In re Diet Drugs , 582 F.3d 524, 552 n.55 (3d Cir. 2009). Absent a specific statutory grounding, the Majority’s expansion of our equitable-mootness doctrine will create a new pseudo-jurisdictional rule th at appears to be boundless.
The best reading of our precedent must look to the precise rationale of the cases that our court cited to support our adoption of equitabl e mootness. Our equitable-mootness cases all
trace back to City of Covington , see supra at 6–7, which did not explain the legal basis for equitable mootness, except to cite the Seventh Circui t’s decision in UNR

. See 71 F.3d at 1225. The statutory-gap-filling theory used by the Seventh Circuit in UNR to justify the adoption of equitable mootness—hardly viable in the cont ext of the Chapter 11 proceedings in which it

arose, see supra at 8—is utterly inapplicable to Chap ter 9. As best articulated, equitable mootness has been based on three statutory pr ovisions, two of which—11 U.S.C. §§ 363(m) and 1127(b)—do not apply to Chapter 9 cases. See 11 U.S.C. § 901(a) (listing provisions of other Chapters of the Bankruptcy Code that “apply in a case under” Chapter 9). Those two provisions
were the entire cloth from which the Seventh Circ uit stitched a policy in favor of venerating
reliance interests. See UNR , 20 F.3d at 769. The third provision that is cited—by other courts,
but not ours or the Seventh Circuit in UNR —is 11 U.S.C. § 364(e), which limits appeals from orders authorizing a bankruptcy trustee “to obtain credit or incur debt” or “grant[ing] . . . a priority or a lien.” Although that provision applie s to Chapter 9 cases, 11 U.S.C. § 901(a), it is an incredibly thin reed on which to base a doctrin e that would cut off appellate rights related toNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 28

orders confirming reorganization plans, without rega rd to whether they relate to orders that are statutorily moot under § 364(e). Indeed, § 364(e), “[b]y [its] te rms . . . do[es] not prevent an appellate court from hearing an appeal, or even from granting a particular remedy; [it] simply prevent[s] the appellate court’s remedy from affecting certain transactions.” One2One , 805 F.3d at 443 (Krause, J., concu rring). The statutory basis for appl ying equitable mootness to Chapter 11 cases is therefore not present at all in Chapter 9 cases, so our precedent does not bind us to extend equitable mootness to Chapter 9.
Nor is there any other compelling reason to apply the doctrine of equitable mootness to Chapter 9 appeals. As I have discussed, equi table mootness is highly questionable, even under Chapter 11. And, of the three de cisions applying the doctrine of equitable mootness to Chapter 9 appeals, two provided no analysis of why the doctrine applied in Chapter 9. See In re City of Vallejo , 551 F. App’x 339 (9th Cir. 2013); Alexander v. Barnwell Cty. Hosp. , 498 B.R. 550 (D.S.C. 2013). The Bankruptcy Appellate Panel of the Ninth Circuit recently held that the doctrine applied to Chapter 9 solely because of the finality and reliance concerns that a city’s residents had in a case dealing with their city’s bankruptcy, In re City of Stockton , 542 B.R. 261, 274 (B.A.P. 9th Cir. 2015), and the district court in th is case similarly he ld that the doctrine applied to Chapter 9 because the relevant reliance interests were similar to those that arise in Chapter 11, see R. 52 (Sept. 29, 2015 Op. at 8–11) (Page ID #65167–65170). This focus on
reliance interests suffers from the same defect as the Majority’s focus on the same. The lack of any other justification for appl ying equitable mootness to Chapter 9 cases, combined with my deep skepticism about the doctrine’s wisdom, convi nces me that there is no reason to extend to the doctrine to Chapter 9 of the Bankruptcy Code. I would therefore revers e the district court’s conclusion that the appeals were equitabl y moot and remand for further proceedings.

II.
In deciding not to decide this case, the Majo rity decides much. The Majority extends our ill-reasoned equitable-mootness doctrine to a new context, imposing an unsupported and damaging limit on our appellate review that will be impossible to cabin in a principled way. There is no textual support fo r this limitation, even accepting the minimal textual support forNos. 15-2194 /2337 / 2353 /2371 /2379 Ochadleus, et al. v. Ci ty of Detroit, Mich. Page 29

applying equitable mootness to Chapter 11 cases. Instead, the Majority expands a species of prudential mootness, the precise kind of pseudo- jurisdictional doctrine that the Supreme Court has suggested conflicts with our “virtually unfla gging obligation . . . to exercise the jurisdiction given [us].” Quackenbush , 517 U.S. at 716 (first alte ration in orig inal) (quoting Colorado River , 424 U.S. at 821). And in doing so, the Majo rity further upends the delicate constitutional balance on which our bankruptcy-a djudication system is based by ensuring that those who seek to appeal the approval of a bankruptcy plan may never have their claims heard by an Article III judge. The Majority makes these mi ssteps all in the name of protec ting reliance intere sts. I have my doubts about the reasonableness of any reliance on a reorganization plan that is known to be subject to significant challenge on appeal, but even if the Majority’s concern about reliance interests is fully valid, it is not our job to write a law to protect those interests. “Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscienti ously to perform our duty.” Cohens , 19 U.S. (6 Wheat.) at 404. The Majority failing to do so, I respectfully dissent.