In Re: Timothy R. Taylor
Filing
1
ORDER from the US Bankruptcy Appellate Panel TRANSFERRING the in forma pauperis Motion to the United States District Court Eastern District of California for the limited purpose of ruling on the IFP. (Attachments: # 1 Part 2)(Donati, J)
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FILED
NOV 14 2011
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
O F TH E N IN TH C IR C U IT
UNITED STATES BANKRUPTCY APPELLATE PANEL
FILED
OF THE NINTH CIRCUIT
Nov 14, 2011
In re:
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TIMOTHY R. TAYLOR,
)
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Debtor.
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TIMOTHY R. TAYLOR,
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Appellant,
)
)
v.
)
)
)
U.S. DEPARTMENT OF HEALTH AND )
HUMAN SERVICES; OFFICE OF THE )
INSPECTOR GENERAL; U.S.
)
DEPARTMENT OF EDUCATION;
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U.S. DEPARTMENT OF JUSTICE,
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)
Appellees.
)
)
BAP No.
EC-11-1512
Bk. No.
98-38409
Adv. No.
11-2356
CLERK, U.S. DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CAED Case # 2:11-mc-0088 JAM GGH
ORDER (1) DENYING STAY MOTION
AND (2) TRANSFERRING IFP
MOTION TO DISTRICT COURT
(Response Required)
Before: DUNN and PAPPAS, Bankruptcy Judges.
This appeal has been judicially reviewed.
1.
Motion for Stay Pending Appeal.
Appellant filed a motion for stay pending appeal with the
BAP on November 7, 2011.
Fed. R. Bankr. P. 8005 requires that a request for stay
pending appeal must ordinarily be presented to the bankruptcy
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judge in the first instance.
Considerations of orderly procedure require that appellant
move for a stay pending appeal in the bankruptcy court before
seeking a stay from the BAP.
The bankruptcy court has continuing
jurisdiction to determine motions for stay pending appeal.
See Ho v. Dai Hwa Elecs. (In re Ho), 265 B.R. 603 (9th Cir. BAP
2001).
Accordingly, the motion for stay pending appeal is hereby
ORDERED DENIED without prejudice to re-filing if it is
demonstrated that a motion for stay pending appeal was presented
to the bankruptcy judge and was either denied or not acted upon
in a timely manner.
2.
Motion for Fee Waiver.
This appeal is properly before the Bankruptcy Appellate
Panel under 28 U.S.C. § 158.
As no party filed a timely election
to have the appeals heard by the United States District Court
under 28 U.S.C. § 158(c), jurisdiction lies with the Panel.
On September 21, 2011, appellant filed in the bankruptcy
court a motion for leave to proceed in forma pauperis with
respect to this appeal ("IFP Motion").
The IFP Motion was
forwarded to the Panel and received on October 4, 2011.
Under the holding of Perroton v. Gray (In re Perroton), 958
F.2d 889 (9th Cir. 1992) and Determan v. Sandoval (In re
2
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Sandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995), the Panel has
no authority to grant in forma pauperis motions under 28 U.S.C.
§ 1915(a) because bankruptcy courts are not “court[s] of the
United States” as defined in 28 U.S.C. § 451.
However, the district court1 has authority to allow a person
to file an appeal without prepayment of the filing fee.
See 28
U.S.C. § 1915(a).
Therefore, Appellant's IFP Motion is hereby TRANSFERRED to
the United States District Court for the Eastern District of
California for the limited purpose of ruling on the IFP Motion.
It is Appellant's responsibility to take all necessary steps
to have the IFP Motion considered by the district court within a
reasonable period of time.
No later than Thursday, December 8, 2011, appellant must
file with the Panel and serve on opposing counsel a written
response which includes as an exhibit a copy of the district
court’s order on the IFP Motion or an explanation of the steps
appellant has taken to have the IFP Motion considered by the
district court.
1
The district courts have original jurisdiction over
bankruptcy cases and proceedings, 28 U.S.C. § 1334, and may
exercise that jurisdiction notwithstanding that a district court
may choose to refer bankruptcy matters to the bankruptcy judges
for the district. 28 U.S.C. § 157(d).
3
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For the convenience of the district court, copies of the
notice of appeal, the judgment on appeal, and the IFP Motion are
attached to this order.
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CAED Case # 2:11-mc-0088 JAM GGH
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U.S. Bankruptcy Appellate Panel
of the Ninth Circuit
125 South Grand Avenue, Pasadena, California 91105
Appeals from Central California (626) 229-7220
Appeals from all other Districts (626) 229-7225
RE: TIMOTHY R. TAYLOR
Appellant: TIMOTHY R. TAYLOR
BAP No.: EC-11-1512
Bk. No.: 98-38409
Adv. No.(s): 11-2356
OPENING LETTER
Notice of Appeal in this case has been received by the Bankruptcy Appellate Panel (BAP) and
assigned the case number above.
For all BAP cases filed on or after March 31, 2010, electronic filing using the BAP's Case
Management/Electronic Case Filing (CM/ECF) docketing system is mandatory for all
attorneys. Please review the Administrative Order Regarding Electronic Filing in BAP Cases
available on the BAP website www.bap9.uscourts.gov for further information.
For non-attorneys, all papers filed with the BAP should be in the form of an original and three
copies.
The BAP docket and other court information is available through the National PACER system.
http://www.bap9.uscourts.gov
Enclosed are the 9th Cir. BAP Rules governing practice before the BAP. Appeals are also
governed by Parts VIII and IX of the Federal Rules of Bankruptcy Procedure (F.R.B.P.), and
some parts of the Federal Rules of Appellate Procedure (F.R.A.P.) See 9th Cir. BAP Rule
8018(b)-1.
Pursuant to 9th Cir. Rule 8001(a)-1, please immediately send the BAP Clerk a copy of the signed
and entered order or judgment being appealed if it was not attached to your notice of appeal.
After a Notice of Appeal has been filed, the parties' next step in prosecuting this appeal is
compliance with F.R.B.P 8006 and 8007, which require Appellant to file within 14 days in the
bankruptcy court a designation of the record, statement of issues on appeal, and a notice
regarding the ordering of transcripts. Under these rules Appellee may also file a supplemental
designation of the record and order transcripts. The party ordering the transcripts must make
satisfactory arrangements for payment of their costs.
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Even if transcripts are not ordered, Appellant is required to file with the bankruptcy court a
notice stating that none are required. See also 9th Cir. BAP R. 8006-1.
The parties should note that the designation of the record under F.R.B.P. 8006 is a necessary
procedural step in prosecuting an appeal and the parties may not later include in their excerpts of
the record documents which have not been designated.
The record and bankruptcy file remain with the Clerk of the bankruptcy court and the Panel
reviews only those items which are reproduced and included in the excerpts of the record filed at
the time of the briefs. While the Panel may call up the formal record, in practice this rarely
occurs.
Further, it is the parties' responsibility to monitor the appeal to ensure that transcripts are timely
filed and the record is completed in a timely manner. Under F.R.B.P. 8007(a), the court reporter
is required to file transcripts within 30 days of receipt of the parties' request, unless an extension
has been granted.
After the record is complete, the Clerk of the bankruptcy court will send a Certificate of Record,
sometimes referred to as a Certificate of Readiness or Certificate of Transcripts, to the BAP
Clerk.
Appeals are set for hearing in the bankruptcy district from which the appeal arose whenever
feasible. To expedite the appeal or if the parties feel argument is unnecessary, they may file a
stipulation or motion to submit their appeal on the briefs and record, thereby waiving oral
argument. The Panel will also consider stipulations requesting an alternative hearing location or
hearing by telephone conference. Such motions should be filed at the earliest possible scheduled
date, generally with the opening brief, as once a case has been scheduled for argument,
continuance and request of change time and place are rarely granted.
CERTIFICATE OF MAILING
The undersigned, deputy clerk of the U.S. Bankruptcy Appellate Panel of the Ninth Circuit,
hereby certifies that a copy of the document on which this certificate appears was transmitted
this date to all parties of record to this appeal.
By: Vicky Jackson-Walker, Deputy Clerk
Date: September 28, 2011
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U.S. Bankruptcy Appellate Panel
of the Ninth Circuit
125 South Grand Avenue, Pasadena, California 91105
Appeals from Central California (626) 229-7220
Appeals from all other Districts (626) 229-7225
To: Clerk, Sacramento Bankruptcy Court
Debtor(s): TIMOTHY R. TAYLOR
BAP No.: EC-11-1512
Bk. Ct. No.: 98-38409
ADV. NO.: 11-2356
INTERNAL Bk. Ct. NO.: ***
The Bankruptcy Appellate Panel has received and docketed the notice of appeal referenced in the
attached transmittal. The BAP case number is indicated above for your information.
If completion of the record has been delayed, please advise us as to the cause of the delay by
completing the following checklist and sending a copy of this letter back to us:
IF THE RECORD ON APPEAL IS COMPLETE, PLEASE SEND THE CERTIFICATE
OF READINESS
Susan M Spraul, BAP Clerk
By: Vicky Jackson-Walker, Deputy Clerk
Date: September 28, 2011
A) REASONS WHY THE RECORD HAS NOT BEEN COMPLETED. THE FOLLOWING ITEMS HAVE NOT
BEEN FILED:
[]
[]
[]
[]
[]
No Filing Fees paid
No Designation of Record
No Statement of Issues
No Notice Regarding the Transcript
No Reporter's Transcript(s)
Reporter name:__________________________________
phone:________________________________
Judge:__________________________________________
Transcript date(s):_____________________________
[]
[]
[]
No Transcript Fees paid
Extension of Time Granted to Reporter:
New deadline:___________________________________
Other:__________________________________________
B) DEPUTY CLERK PROCESSING THIS APPEAL
1. Name:_________________________________________________
2. Phone:________________________________________________
3. Date:_________________________________________________
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UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
____________________________________________________________________________
In re: TIMOTHY R. TAYLOR
lllllllllllllllllllllDebtor
------------------------------
BAP No. EC-11-1512
TIMOTHY ROBERT TAYLOR
lllllllllllllllllllllAppellant
v.
Bankr. No. 98-38409
Adv. No. 11-2356
Chapter 11
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES; OFFICE OF THE
INSPECTOR GENERAL; U.S.
DEPARTMENT OF EDUCATION; U.S.
DEPARTMENT OF JUSTICE; U.S.
DEPARTMENT OF JUSTICE
FILED
SEP 29 2011
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
O F TH E N IN TH C IR C U IT
lllllllllllllllllllllAppellees
____________________________________________________________________________
BRIEFING ORDER
(Prompt Action Required)
Unless otherwise ordered by this court, the parties to this appeal shall timely complete all of
the briefing deadlines set forth below. Failure of the parties to comply with these deadlines
may result in dismissal of this appeal or in the imposition of other sanctions. These deadlines
control and supersede any briefing deadlines contemplated by the Federal Rules of
Bankruptcy Procedure ("FRBP").
Last day for appellant(s) to file opening brief and appendix: November 14, 2011.
Last day for appellee(s) to file responsive brief and appendix: Twenty-One days after
service of appellant's opening brief.
Last day for appellant(s) to file optional reply brief: Fourteen days after service of
appellee's reply brief.
Requirements for filing a brief, an appendix (excerpts of the record), and required certificates
are set forth in FRBP 8009 and 8010, and Ninth Circuit BAP Rules 8009(a)-1, 8009(b)-1, and
8010(a)-1. Length of briefs is governed by Ninth Circuit BAP Rule 8010(c)-1. See also 9th
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Cir. BAP Rule 8006-1 (describing requirements for the inclusion of transcripts in the excerpts
of the record).
The parties generally should expect that oral argument will occur shortly after briefing is
completed. Please refer to the attached materials regarding advance consideration of issues
concerning oral argument.
FAILURE OF APPELLANT TO TIMELY PROVIDE AN ADEQUATE OPENING
BRIEF AND ADEQUATE EXCERPTS OF THE RECORD IN COMPLIANCE WITH
THE GOVERNING RULES MAY RESULT IN DISMISSAL OF THE APPEAL, OR IN
SUMMARY AFFIRMANCE OF THE RULING ON APPEAL. See Morrissey v. Stuteville
(In re Morrissey), 349 F.3d 1187 (9th Cir. 2003).
FOR THE PANEL,
Susan M Spraul
Clerk of Court
SUMMARY OF REQUIREMENTS FOR BRIEFS AND EXCERPTS OF THE
RECORD
This Summary is intended to help the parties file their briefs and appendix in the proper
format, but it is not a substitute for reading and complying with all of the procedural rules
listed in the Briefing Order, which rules govern the format and content of each brief and
appendix. Briefs that do not comply with national and local rules may not be accepted for
filing. Your attention is particularly called to the following requirements:
LENGTH -- Thirty pages for the opening briefs of appellant and appellee. Twenty pages for
appellant's reply brief, if any.
NUMBER -- A signed original and four copies of all briefs; five copies of the excerpts of the
record.
COVERS -- Appellant's opening brief - BLUE; appellee's brief - RED. appellant's reply brief GRAY; all excerpts of the record - WHITE.
APPENDIX (Excerpts of The Record) -- The parties are required to include copies of all
relevant documents from the bankruptcy court record, including transcripts, in their excerpts.
FORMAT OF APPENDIX -- The Appendix must comply with the requirements of 9th Cir.
BAP Rule 8009 (b) - 1. FAILURE TO TAB ALL DOCUMENTS IN THE APPENDIX, TO
CONTINUOUSLY PAGINATE THE ENTIRE APPENDIX, AND TO PROVIDE A TABLE
OF CONTENTS IN THE FORM SPECIFIED IN THE ABOVE-REFERENCED RULE
MIGHT SEVERELY HAMPER THE PANEL'S REVIEW OF THE ISSUES ON APPEAL.
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CERTIFICATES -- Both appellant's and appellee's opening brief must contain a Certificate of
Interested Parties. Appellants brief must also contain a Certificate of Related Cases.
CALCULATION OF TIME -- Briefs are deemed filed on the day of mailing. FRBP 8008(a).
ADVANCE CONSIDERATION OF ISSUES CONCERNING ORAL ARGUMENT
While the parties are briefing, the BAP is considering where and when to set oral argument.
Because the BAP seeks to set argument as soon as practical after briefing is completed, any
stipulations, motions or notices concerning oral argument should be filed at the earliest
possible time, generally with a party's first brief. While appeals typically are set for hearing in
the bankruptcy district from which the appeal arose whenever feasible, the parties may file a
stipulation or motion requesting an alternative hearing location or a hearing by telephone or
video conference. The parties also may file a stipulation or motion to submit their appeal on
the briefs and record, thereby waiving oral argument.
All parties should carefully review the dates on the BAP's annual hearing calendar located on
the BAP's website: http://www.ce9.uscourts.gov/bap. This calendar contains dates that the
BAP judges have set aside for argument, and it is likely that your appeal will be set for
hearing on one of these dates. If a party knows or suspects that he or she will be unavailable
on one of these dates, he or she should file as soon as possible a notice of unavailability,
stating the dates on which he or she is unavailable. Once a case has been scheduled for
argument, continuances and requests to change time or place are rarely granted.
CERTIFICATE OF MAILING
The undersigned, deputy Clerk of the U.S. Bankruptcy Appellate Panel of the Ninth Circuit,
hereby certifies that a copy of the document to which this certificate is attached was
transmitted this date to all parties of record to this appeal, to the United States Trustee and to
the Clerk of the Bankruptcy Court.
By: Vicky Jackson-Walker, Deputy Clerk
Date: September 29, 2011
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