Ozenne v. Chase Manhattan Bank (In re Ozenne)

A bankruptcy appellate panel is not a court established by an Act of Congress and so cannot issue a writ of mandate under the All Writs Act.  The All Writs Act (28 USC 1651(a)) grants the power to issue writs, such as a writ of mandate, to all courts established by an Act of Congress.  A bankruptcy appellate panel is not such a court and has no jurisdiction to consider a petition for writ of mandate.  The section providing for BAPs (28 USC 158(b)(1)) allows a circuit’s judicial council to establish a BAP unless the council finds the circuit lacks the judicial resources to do so or doing so would lead to undue delay or cost.  Thus, BAPs are established by and in the discretion of the judicial council, not by an Act of Congress.  Furthermore, section 158 refers to BAPs as “panels” not “courts” and they fall outside section 1651 for that reason as well.

Ninth Circuit Court of Appeals (Wallace, J.; Bybee, J., concurring in part and dissenting in part); March 25, 2016; 2016 WL 1169094

 

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