FILED

United States Court of Appeals

Tenth Circuit

June 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

GEORGE MILAM HALL,

Petitioner.

No. 10-3111

(D.C. Nos. 5:09-CV-04091-JAR &

5:09-CV-04123-SAC)

(D. Kan.)

ORDER

Before TACHA, O’BRIEN, and HOLMES, Circuit Judges.

This is an original proceeding in the nature of mandamus and prohibition

brought by pro se petitioner George Milam Hall. We have liberally construed his

petition (1) as a motion to stay the bankruptcy court’s April 28, 2010 order

regarding the payment of the Gehl proceeds, see Fed. R. App. P. 8; (2) as a

mandamus petition requesting this court order the bankruptcy court to rule on his

outstanding Bankruptcy Rule 9023 and 9024 motions, see Johnson v. Rogers,

917 F.2d 1283, 1285 (10th Cir. 1990) (“mandamus will lie in a proper case to

direct a subordinate Federal Court to decide a pending cause”) (quotation

omitted); (3) as a mandamus petition requesting the recusal of the bankruptcy

judge, see Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (per curiam)

(“mandamus is an appropriate vehicle by which to challenge a district court’s

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The other requests for relief in the mandamus petition are issues that should 1

be raised on appeal, not subjects this court can address as a matter of its original

jurisdiction.

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denial of a recusal motion”); and (4) as a request for the appointment of counsel

in this proceeding. Mr. Hall also has filed an “Emergency Motion for 1

Interlocutory Appeal,” in which he seeks leave to take an interlocutory appeal

from certain bankruptcy court orders to the district court or to this court. The

parties are aware of the facts, so we do not discuss them in this order. 

I. Motion for Stay

Mr. Hall requests that this court stay the payment of the Gehl proceeds

under the bankruptcy court’s order dated April 28, 2010. Stays are governed by

Fed. R. Civ. P. 8. Under Rule 8(a)(2)(A), a party should show “that moving first

in the district court would be impracticable” or “state that, a motion having been

made, the district court denied the motion or failed to afford the relief requested.” 

Here, the bankruptcy court is the trial-level court and the district court is the

first-tier appellate court. See 28 U.S.C. § 158(a). But we see no reason why

Rule 8’s preference for initially seeking relief in the district court should not still

apply. The bankruptcy court denied Mr. Hall’s request for a stay, but Mr. Hall

also has moved for a stay in his pending district court appeals (District of Kansas,

Nos. 10-CV-4057-JWL and 10-CV-4058-JWL). The district court has yet to rule

on his motions. We shall not interfere in the appeals pending in the district court.

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II. Mandamus

“[M]andamus is not a substitute for an appeal.” Weston v. Mann (In re

Weston), 18 F.3d 860, 864 (10th Cir. 1994). “The Supreme Court has made it

clear that mandamus is a ‘drastic’ remedy that is ‘to be invoked only in

extraordinary situations.’” In re Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2008)

(quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)

(per curiam)). “It is not appropriate to issue a writ when the most that could be

claimed is that the district courts have erred in ruling on matters within their

jurisdiction.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir.

2009) (quotation omitted).

Three conditions must be met before a writ of mandamus may issue. 

First, because a writ is not a substitute for an appeal, the party

seeking issuance of the writ must have no other adequate means to

attain the relief he desires. Second, the petitioner must demonstrate

that his right to the writ is clear and indisputable. Finally, the

issuing court, in the exercise of its discretion, must be satisfied that

the writ is appropriate under the circumstances.

Id. (quotations and citations omitted).

Mr. Hall has not shown he has no other adequate means of attaining relief. 

As discussed above, the district court represents the first tier of appellate review

of bankruptcy decisions, and Mr. Hall has two pending district-court appeals. 

Further, the district court is empowered to issue writs of mandamus. 

See 28 U.S.C. § 1651(a). Seeking relief from the district court is particularly

appropriate with regard to Mr. Hall’s efforts to require the bankruptcy court to

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decide his Rule 9023 and 9024 motions, because the bankruptcy court has stated

it will proceed with those motions if ordered to do so by the district court. 

Bankr. Doc. 663 (Order Concerning Scheduling of Hearings on Documents 309,

356, and 576) at 3. In short, Mr. Hall cannot seek extraordinary relief from this

court without first fully availing himself of his remedies in the district court. 

Cf. Frates v. Weinshienk, 882 F.2d 1502, 1503-04 (10th Cir. 1989) (seeking

mandamus relief requiring recusal of bankruptcy judge, after the district court

refused to order recusal).

III. Emergency Motion for Interlocutory Appeal

Mr. Hall also seeks to take an interlocutory appeal, either to the district

court or to this court, of various issues involved with the bankruptcy court’s

orders concerning his former attorney’s fees and the payment of the Gehl

proceeds. Addressing only the requests directed toward this court, we conclude

this court lacks jurisdiction to grant relief.

This court’s bankruptcy appellate jurisdiction is set forth in 28 U.S.C.

§ 158(d). Subsection (d)(2)(A) allows this court to hear an interlocutory appeal

in a bankruptcy proceeding if the bankruptcy court, the district court, or all the

parties “acting jointly” certify that:

(i) the judgment, order, or decree involves a question of law as to

which there is no controlling decision of the court of appeals for the

circuit or of the Supreme Court of the United States, or involves a

matter of public importance;

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(ii) the judgment, order, or decree involves a question of law

requiring resolution of conflicting decisions; or

(iii) an immediate appeal from the judgment, order, or decree may

materially advance the progress of the case or proceeding in which

the appeal is taken.

Here, there has been no certification by either the bankruptcy court or the district

court, and the filing was made by Mr. Hall alone, not the parties acting jointly. 

Accordingly, this court does not have jurisdiction to hear an interlocutory appeal. 

Because we lack jurisdiction, we cannot grant Mr. Hall’s other requests for relief

in his emergency motion.

Mr. Hall’s request to proceed before this court without prepayment of costs

and fees is GRANTED. His request in his mandamus petition for the appointment

of counsel for this proceeding is DENIED. His motion for stay is DENIED. 

His petition for a writ of mandamus is DENIED. His Emergency Motion for

Interlocutory Appeal, as directed toward this court, is DENIED.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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