In Re Dsl, Inc., Debtor.dsl, Inc., Debtor-appellant, v. John M. England, Anthony G. Sousa, Trustees-appellees, 15 F.3d 1084 (9th Cir. 1994)

Before: SCHROEDER and NOONAN, Circuit Judges, and JONES,^**  District Judge.

MEMORANDUM^*** 

Appellants Barton and Kleines contend that Bankruptcy Judge Karlson applied a per se rule denying their request for a nunc pro tunc appointment in a bankruptcy case. The judge did not apply a per se rule; rather, he properly applied the law of this Circuit on nunc pro tunc appointments. The law allows nunc pro tunc appointments, but only in cases where there exist "exceptional circumstances where an applicant can show both a satisfactory explanation for the failure to receive prior judicial approval and that he or she has benefited the bankrupt estate in some significant manner." In re THC Financial Corp., 837 F.2d 389, 392 (9th Cir. 1988).

Appellants Barton and Kleines failed to demonstrate any exceptional circumstances; they simply forgot to seek judicial approval of their appointment. If simple negligence or inadvertence were enough to qualify counsel for nunc pro tunc appointment, then the employment provisions of 11 U.S.C. §§ 327(a) and 330(a) would be rendered nugatory. A counsel who had not previously sought judicial approval of appointment, as required by the sections cited above, could simply tell the court, "I forgot." Nunc pro tunc appointments require more than that.

For the reasons set out above and set out clearly in Judge Orrick's opinion, we

AFFIRM.