Unpublished Disposition, 900 F.2d 263 (9th Cir. 1987)

MEMORANDUM^** 

Kathryn M.P. Willey appeals pro se the district court's order affirming the bankruptcy court's dismissal with prejudice of Willey's Chapter 11 bankruptcy petition. Willey also appeals the district court's denial of her motion for rehearing. Willey contends that the bankruptcy court did not have jurisdiction to dismiss her petition sua sponte, and that the district court judge is "mandatorily and constitutionally disqualified in this action." We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand in part and affirm in part.

* Dismissal Sua Sponte

We review the bankruptcy court's findings of fact under the clearly erroneous standard and its conclusions of law de novo. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir. 1986).

Willey contends that the bankruptcy judge did not have jurisdiction under 11 U.S.C. § 1112(b) to dismiss a bankruptcy action sua sponte. That provision previously was interpreted to prohibit sua sponte dismissals. See In re Moog, 774 F.2d 1073, 1076 (11th Cir. 1985); In re Gusam Restaurant Corp., 737 F.2d 274, 277 (2d Cir. 1984); In re Warner, 30 Bankr. 528 (Bankr. 9th Cir. 1983). Subsequent to these decisions Congress amended Section 105(a) of the Bankruptcy Code to read:

The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.

Therefore, sua sponte dismissals are now permissible. However, the amended provision was not effective until the earlier of two years after the effective date of the Act (November 26, 1986) or thirty days after the Attorney General certifies that the act is effective in the relevant judicial district. Pub. L. No. 99-5545, Sec. 302(d) (2), 100 Stat. 3120 (1986); In re Rubenstein, 71 Bankr. 777, 779 (Bankr. 9th Cir. 1987). Provided no certification occurred prior to the bankruptcy court's dismissal, the bankruptcy court's March 20, 1987 sua sponte dismissal was not statutorily authorized.

Although not authorized by statute, a bankruptcy court does have equitable power "to control its docket, to preserve its integrity, and to insure that the legislation administered by the court accomplishes its legislative purpose." In re Moog, 774 F.2d at 1076 (quoting In re Nikron, Inc., 27 Bankr. 773, 777 (Bankr.E.D. Mich. 1983)); see also In re Ray, 46 Bankr. 424, 426 (Bankr.S.D. Ga. 1984) (bankruptcy court may dismiss cases sua sponte where to do so perpetuates the proper use of the bankruptcy mechanism); In re Daily Corp., 72 Bankr. 489, 490 (Bankr.E.D. Pa. 1987) (courts have inherent power to control their dockets even without authority from a specific rule or statutory provision) (citations omitted). The court's power includes the discretion to dismiss Chapter 11 filings "with demonstrably frivolous purposes absent any economic reality." In re Moog, 774 F.2d at 1076.

The district court ordered dismissal under its inherent power to control its docket. The record fails to reflect that the district court reviewed the bankruptcy record to determine whether Willey's Chapter 11 petition was without economic reality. See In re Moog, 774 F.2d at 1076. While it may have done so, it made no record of its review. Failure to determine whether Willey's Chapter 11 petition has any economic reality precludes a determination that the petition is frivolous. See id. We must therefore remand the dismissal of Willey's Chapter 11 petition to the district court for consideration of this aspect (or a reference in the record to its consideration of this aspect if it was considered).

II

Disqualification of District Court Judge

An order denying a motion of disqualification is reviewable for an abuse of discretion. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984).

Willey contends that Chief Judge Peckham is "both constitutionally and mandatorily disqualified in any action concerning Kathryn Willey." She argues on appeal that Judge Peckham was responsible for the eviction of Willey from two homes and he has blacklisted, labeled and harassed her in order to deter her from petitioning the court.

A judge may be disqualified if there are objective reasons for a reasonable person with knowledge of all the facts to conclude that the judge's impartiality might reasonably be questioned. 28 U.S.C. § 455(a); Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). " [A judge] ... shall also disqualify himself ... (1) [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...." 28 U.S.C. § 455(b) (1). Sections 455(a) and (b) (1) are to be construed together when the ground for recusal is the bias or partiality of the trial judge. United States v. Winston, 613 F.2d 221, 222 (9th Cir. 1980) (citation omitted). To provide grounds for recusal, prejudice must result from an extrajudicial source. Mayes, 729 F.2d at 607 (citation omitted). A judge's previous adverse ruling alone is not sufficient bias. Id. (citation omitted).

The blacklisting, labeling and harassment to which Willey refers is allegedly the result of a newspaper article in the San Francisco Examiner regarding "vexatious litigants." The article discussed the Northern District court's policy of ordering litigants who file numerous lawsuits, many of which are frivolous, to get a judge's stamp of approval before the suit can be brought in the court. The article quoted Judge Peckham regarding the court's ability to issue the orders to control its business.

The fact that Chief Judge Peckham presided over other matters involving Willey, and ruled adversely to her interests, is not sufficient to show bias on the part of the judge. See Mayes, 729 F.2d at 607. Judge Peckham fully and fairly discussed the merits of Willey's action. His familiarity with Willey's previous actions, and the newspaper article quoting Judge Peckham, taken together, fail to raise a question regarding the judge's impartiality. Willey has failed to show that the judge's alleged bias or prejudice is personal as opposed to judicial in nature. The district court properly denied Willey's motion for rehearing.¹  See Mayes, 729 F.2d at 607 (prejudice must result from extrajudicial source).

REMANDED in part; AFFIRMED in part. Each party shall bear its own costs on appeal.