OpenJurist

917 F2d 566 Pacific Forest Industries Inc Tilem v. United States Trustee

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re PACIFIC FOREST INDUSTRIES, INC., Debtor.
David A. TILEM, Esq., Plaintiff-Appellant,
v.
UNITED STATES TRUSTEE, Defendant-Appellee.

No. 89-55554.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 1, 1990.
Decided Oct. 26, 1990.

Before ALARCON and WILLIAM A. NORRIS, Circuit Judges, and MARSH,* District Judge.

MEMORANDUM**

On December 1, 1988, Pacific Forest Industries, Inc. filed a bankruptcy petition under Chapter 11 of the Bankruptcy Act, 11 U.S.C. Sec. 701 et seq. (1976) (repealed 1989). Subsequently, David A. Tilem applied to the United States Trustee to act as counsel to the Debtor-in-Possession. Tilem's application included a written retainer agreement between Tilem and Pacific Forest providing for payment of a pre-petition retainer of $20,000. It also required Pacific Forest to transfer funds each month from the estate to a client trust account, which would be used to pay Tilem's fees. Although the account was in Pacific Forest's name, it was under Tilem's sole control.

The retainer agreement specified that no funds would be withdrawn from the Trust Account without the approval of the Bankruptcy Court pursuant to Title 11 U.S.C. of the Bankruptcy Code Sec. 330 et. seq. and applicable procedural rules. The Trustee filed an objection to the monthly sequestration of funds and requested a hearing on the Application and Agreement. The Bankruptcy Court subsequently approved Tilem's employment but struck the sequestration provision. The district court affirmed the bankruptcy court's decision per curiam. Tilem appeals the bankruptcy court's order pursuant to 28 U.S.C. Sec. 158(d) (Supp. IV 1986).

1

The bankruptcy court decision that Tilem's proposed payment plan violated the Bankruptcy Code is a legal conclusion that is subject to de novo review. See In re Devers, 759 F.2d 751, 753 (9th Cir.1985).

2

We may not consider Tilem's appeal unless it is a final decision, judgment, order or decree. See In re Landmark Hotel and Casino, Inc., 872 F.2d 857, 860 (9th Cir.1989) (citing 28 U.S.C. 158(d))1; Salomon v. Logan, 718 F.2d 322, 325 & n. 5 (9th Cir.1983). Resolution of the jurisdictional question, thus, depends on whether the underlying bankruptcy court order is a reviewable final order or an unappealable, interlocutory order. See id; see also In Re Delta Services Industries, 782 F.2d 1267, 1268 (5th Cir.1986); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3926, at 65 (West Supp.1985).

3

It is well established that interim orders are interlocutory. See, e.g., In re Landmark, 872 F.2d at 860 (interlocutory compensation order not reviewable); In re Delta Services, 782 F.2d at 1271-72 (interim trustee order not reviewable); In re Stable Mews, 778 F.2d 121, 123-24 (2d Cir.1985) (interim compensation order not reviewable). Merely because the bankruptcy court has barred one method of payment does not mean that the dispute over compensation is over. Under Sec. 331, Tilem may seek interim compensation awards every 120 days. Moreover, interim allowances are subject to the court's re-examination and adjustment. See 2 Collier on Bankruptcy Sec. 331.03 at 331-9 (15th ed. 1985).

4

Tilem's claim that the Supreme Court has embraced a "pragmatic" rather than a "mechanical" approach to finality is misguided and contravenes the strict approach to finality that this circuit has taken. See In re Landmark, 872 F.2d at 860. Equally unfounded is his effort to place this case under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Tilem has not shown that his rights will be "irretrievably lost in the absence of immediate appeal," In re Stable Mews, 778 F.2d at 123 (quoting Cohen, 105 S.Ct. at 2761); he can both appeal any final compensation award and seek interim payments on a regular basis.

5

Because we conclude that the bankruptcy court's order is interlocutory and Tilem has not presented an adequate grounds for gaining immediate review, we dismiss the case for lack of jurisdiction.

6

The appeal is DISMISSED for lack of jurisdiction.

*

Honorable Malcolm F. Marsh, United States District Judge for the District of Oregon, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

This section provides in pertinent part:

(a) The district courts ... shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings ... under section 157

* * *

(d) The courts of appeals shall have jurisdiction from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) ...