In Re Exclusive Industries Corporation, Debtor.hugh William Thistlethwaite, Trustee, Plaintiff-appellee, v. First National Bank of Lafayette, La., Defendant-appellant, v. Amco Underwriters of Audubon Insurance Company, Defendant-appellee, 751 F.2d 806 (5th Cir. 1984)

This is a direct appeal from a July 11, 1984, final judgment of the Bankruptcy Court for the Western District of Louisiana. As a result of recent statutory amendments, we lack jurisdiction of the appeal. We have the authority, however, under 28 U.S.C. § 1631, to transfer this appeal to the proper forum. Accordingly, we direct the Clerk of the Court to transmit the briefs and record in this case to the United States District Court for the Western District of Louisiana.

William C. Sandoz, the bankruptcy trustee of the estate of Exclusive Industries Corporation, commenced this adversary proceeding to determine the validity, priority and extent of liens asserted by creditors on the proceeds generated by the sale of certain of the debtor's property. The case was tried in the Bankruptcy Court for the Western District of Louisiana on January 24, 1984. The court filed an opinion on May 15, 1984. 41 B.R. 493. A judgment was not signed, however, until July 11, 1984. The First National Bank of Lafayette filed a notice of appeal to this court on July 26, 1984.

The parties assert that we have jurisdiction of this appeal under 28 U.S.C. § 1293(b) which provides that, with the consent of all parties, "a court of appeals shall have jurisdiction of an appeal ... from a final judgment ... of a bankruptcy court of the United States." All of the parties in this case have consented to a section 1293(b) direct appeal. We conclude, however, that our jurisdiction of bankruptcy appeals no longer derives from that statute.

As part of the 1978 reform of the bankruptcy court system, section 1293(b) was scheduled by Congress to take effect on June 28, 1984. See Pub. L. No. 95-598, Sec. 402(b), 92 Stat. 2682 (1978), as amended by Pub. L. No. 98-325, Sec. 1(a), 98 Stat. 268 (1984). During the transition period between November 6, 1978, and June 28, 1984, Congress provided that section 1293(b) would govern as if fully effective. See Pub. L. No. 95-598, Sec. 405(c), 92 Stat. 2685 (1978). The Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, Secs. 113, 122(c), 98 Stat. 343, 346 (the 1984 Act), intervened, however, and provides that, rather than taking effect on June 28, 1984, section 1293(b), as of June 27, 1984, "shall not be effective."¹ 

Congress replaced section 1293(b) with a new bankruptcy appellate system which no longer includes a provision for consensual direct appeals to the courts of appeals. Section 104(a) of the 1984 Act, codified at 28 U.S.C.A. Sec. 158, provides that district courts have jurisdiction of appeals from decisions of bankruptcy judges in cases under title 11 and in core proceedings referred to bankruptcy judges under the authority granted by 28 U.S.C.A. Sec. 157. The 1984 Act also provides that, with the consent of all parties, appellate jurisdiction of bankruptcy matters may be exercised, in certain circumstances, by bankruptcy appellate panels comprised of three bankruptcy judges. In addition, the 1984 Act provides that " [t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsection (a) [appellate decisions by district courts] and (b) [decisions of bankruptcy appellate panels] of this section." Id. Clearly, by these provisions, Congress abolished the direct appeal option and limited our jurisdiction in bankruptcy matters to appeals from the decisions of district judges and bankruptcy appellate panels.

The appellate jurisdiction provisions of the 1984 Act became effective on July 10, 1984. See id. Sec. 122, 98 Stat. 346. Since that date, therefore, we have been without jurisdiction to hear direct appeals from the decisions of bankruptcy judges, at least under the circumstances that obtain here. The judgment appealed from in this case was entered on July 11, 1984, and the notice of appeal was filed on July 26, 1984. Thus, there can be no question that the 1984 Act governs this appeal and that we lack jurisdiction.² 

Although we lack jurisdiction, we are not constrained to dismiss this appeal. Congress in 1982 enacted, as a part of the Federal Courts Improvement Act, a statute granting broad transfer powers to federal courts. Section 1631 of title 28³  provides that, when a federal court discovers that it lacks jurisdiction, it may, in the interest of justice, transfer a case to a federal court which, on the day the case was filed, had jurisdiction of the matter. In the appellate context, a section 1631 transfer is appropriate if: (1) the transferor court lacks jurisdiction; (2) on the date the notice of appeal was filed, the transferee court could have heard the appeal; and (3) the interests of justice would be served by transfer.

We have already determined that this case is not properly before us. Pursuant to 28 U.S.C.A. Sec. 158(a),⁴  jurisdiction of this appeal rests with the District Court for the Western District of Louisiana. Given the cloud of confusion that has shrouded bankruptcy jurisdiction since Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), we conclude that the interests of justice would be served by a transfer to that court.⁵  Accordingly, we will exercise the transfer power granted to us by 28 U.S.C. § 1631.

For the reasons set forth above, the Clerk of the Court is directed to transmit the briefs and record in this case to the United States District Court for the Western District of Louisiana.

TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA.