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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1059
MARTIN C. CONWAY; PESNER KAWAMATO CONWAY, P.C.,
Plaintiffs â Appellants,
v.
SMITH DEVELOPMENT, INC.,
Defendant â Appellee,
and
USBC-ALEXANDRIA (UNITED STATES BANKRUPTCY COURT),
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam OâGrady, Senior District Judge. (1:21-cv-01055-LO-JFA)
Argued: December 8, 2022 Decided: April 4, 2023
Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.
Dismissed by published opinion. Judge Rushing wrote the opinion, in which Chief Judge
Gregory and Judge King joined.
ARGUED: Danny Mark Howell, LAW OFFICES OF DANNY M. HOWELL, PLLC,
McLean, Virginia, for Appellants. John Simon Lopatto, III, Washington, D.C., for
Appellee. ON BRIEF: Jennifer L. Rowlett, LAW OFFICES OF DANNY M. HOWELL,
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PLLC, McLean, Virginia, for Appellants.
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RUSHING, Circuit Judge:
Attorney Martin Conway and his law firm, Pesner Kawamato Conway, P.C.,
(collectively, Conway) appeal the district courtâs order rejecting the bankruptcy courtâs
report and recommendation to enjoin Smith Development, Inc.âs legal malpractice suit
against Conway and to impose sanctions for violating the Barton doctrine and the
automatic stay. Because the district courtâs decision rests on the abstention principles in
28 U.S.C. § 1334(c)(1), we lack subject-matter jurisdiction to review it. See
28 U.S.C.
§ 1334(d). Accordingly, we dismiss the appeal.
I.
In Barton v. Barbour, 104 U.S. 126 (1881), the Supreme Court held that âbefore
another court may obtain subject-matter jurisdiction over a suit filed against a receiver for
acts committed in his official capacity, the plaintiff must obtain leave of the court that
appointed the receiver.â McDaniel v. Blust, 668 F.3d 153, 156 (4th Cir. 2012). The
appointing court should ââordinarilyââ allow the lawsuit to proceed ââunless it is clear that
the claim is without foundation.ââ Id. at 156â157 n.1 (quoting Anderson v. United States,
520 F.2d 1027, 1029 (5th Cir. 1975)). We have extended the doctrine to suits against
bankruptcy trustees and their attorneys. Id. at 157.
The present dispute arises against this legal backdrop. Smith Development built
luxury residential housing before it fell on hard times during the 2008 housing crisis and
then filed for bankruptcy in early 2009. Conway assisted the company in filing its Chapter
11 bankruptcy petition and represented it in the subsequent Chapter 11 proceedings. As
the bankruptcy progressed, Smith Development initiated three adversary proceedings
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against home buyers who had defaulted on contracts. While those actions were pending,
the bankruptcy court converted the bankruptcy to a Chapter 7 case. Post-conversion, the
Chapter 7 trustee retained Conway as special counsel to represent the trustee in the pending
adversary actions. With the approval of the trustee and the bankruptcy court, Conway
settled all three actions. In December 2011, the bankruptcy court approved the trusteeâs
final report, and in September 2012, the bankruptcy court closed the case.
Nearly five years later, in April 2017, Smith Development sued Conway in the
Alexandria Circuit Court in Virginia, alleging legal malpractice arising from Conwayâs
representation of Smith Development during the Chapter 11 proceedings and
representation of the trustee in the Chapter 7 proceedings. Smith Development later
nonsuited the action. In April 2019, the company filed a new malpractice action in
Alexandria Circuit Court, reprising many of the same theories as its earlier suit. It then
moved in bankruptcy court for permission under Barton to proceed with the lawsuit. The
bankruptcy court denied the request and Smith Developmentâs motion to reconsider.
Undeterred, Smith Development forged ahead and amended its state-court complaint,
dropping the Chapter 11 allegations and alleging malpractice arising only from Conway
purportedly representing Smith Development and the trustee simultaneously in the Chapter
7 proceedings. According to Smith Development, the conflict of interest arising from the
alleged concurrent representation influenced Conway to settle the three adversary actions
for far less than their actual value.
In January 2021, Conway moved to reopen Smith Developmentâs bankruptcy case.
Conway asked the bankruptcy court to enjoin Smith Developmentâs pending malpractice
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suit under Barton and to award Conway damages for the expenses it incurred defending
against the malpractice suits. The bankruptcy court agreed with Conway, concluding that
Smith Developmentâs malpractice suit violated Barton, willfully violated the automatic
stay, and warranted sanctions. But because Smith Development challenged the bankruptcy
courtâs jurisdiction to decide Conwayâs motion, the bankruptcy court did not issue a ruling.
Instead, it issued a report and recommendation with findings and conclusions to the district
court. Smith Development did not object to the bankruptcy courtâs findings of fact but
challenged its jurisdiction and disputed its legal conclusions.
The district court rejected the bankruptcy courtâs report and recommendation. It
instead relied on 28 U.S.C. § 1334(c)(1) to abstain in favor of the state-court proceedings.
The district court reasoned that the underlying malpractice suit involved purely state-law
issues, Conway and his firm were potentially proper defendants in their capacity as counsel
for Smith Development if a dual representation occurred, and the suitâs outcome would not
affect the bankruptcy estate. Moreover, the court reasoned that the resolution of claims
and factual issues in the malpractice action would bear on whether Barton applied and
whether the claims were the bankruptcy estateâs property such that the suit violated the
automatic stay. Based on these considerations, the court concluded that âcomity and
respect for the state courts[] clearly weigh[ed] in favor of abstentionâ and that the state
court provided âan appropriate forum that can fully adjudicate the state law malpractice
claim as a court of competent jurisdiction.â Conway v. Smith Dev., Inc., 637 B.R. 811, 819
(E.D. Va. 2021).
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Conway timely appealed. Smith Development moved to dismiss the appeal, arguing
that Conway was not a party in interest who could move to reopen Smith Developmentâs
bankruptcy case. We deferred ruling on the motion pending consideration of the merits.
Now, with the benefit of briefing and argument, we hold that 28 U.S.C. § 1334(d) precludes
us from exercising jurisdiction over Conwayâs appeal.
II.
We have an independent obligation to ensure that we possess appellate jurisdiction.
See Steel Co. v. Citizens for a Better Envât, 523 U.S. 83, 95 (1998). Congress gave district
courts âoriginal but not exclusive jurisdiction of all civil proceedings arising under title 11,
or arising in or related to cases under title 11.â 28 U.S.C. § 1334(b). However, except in
a Chapter 15 case, ânothing in [Section 1334] prevents a district court in the interest of
justice, or in the interest of comity with State courts or respect for State law, from
abstaining from hearing a particular proceeding arising under title 11 or arising in or related
to a case under title 11.â Id. § 1334(c)(1). âAny decision to abstain or not to abstainâ made
by the district court under Section 1334(c)(1) âis not reviewable by appeal or otherwise by
the court of appeals.â Id. § 1334(d). Accordingly, when a district court abstains under
Section 1334(c)(1), we ââlack jurisdiction to decide whether the district courtâs decision on
permissive abstention was correct.ââ In re Lee, 461 Fed. App. 227, 238 (4th Cir. 2012)
(quoting Baker v. Simpson, 613 F.3d 346, 352 (2d Cir. 2010)).
The district court relied on Section 1334(c)(1) as the basis for its decision to reject
the bankruptcy courtâs report and recommendation, to abstain from taking further action in
the matter, and to order the bankruptcy court to do the same. Indeed, the court concluded
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that âcomity and respect for the state courts[] clearly weigh[ed] in favor of abstentionâ and
that federal courts had âalready interfered with ongoing state proceedings without
considering the[se] important principles.â Conway, 637 B.R. at 819. In the district courtâs
view, the state court provided an appropriate forum to adjudicate Smith Developmentâs
legal malpractice claims and presumably develop the factual record the court found
necessary to conclusively rule on Conwayâs arguments. Whatever the merits of the district
courtâs reasoning, its abstention decision falls squarely within Section 1334(c)(1) and is
thus ânot reviewable by appeal.â 28 U.S.C. § 1334(d).
Conway acknowledges the obstacle Section 1334(d) poses but offers several reasons
why that provision does not apply. Before we address those arguments, we pause to
observe that underlying Conwayâs arguments is an implicit request to recognize an
exception to Section 1334(d) that would allow us to review a district courtâs permissive
abstention decision when it exceeds the scope of the courtâs authority. Such an exception
arguably exists; the Supreme Court has recognized a similar limitation on an analogous bar
to appellate review in 28 U.S.C. § 1447(d), which limits review of certain orders remanding
a case to the state court from which it was removed. See Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 711â712 (1996); Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336,
351 (1976), overruled on other grounds by Quackenbush, 517 U.S. at 714â715; see also
In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006). Courts that
recognize an exception have interpreted Section 1334(d) to âpreclude appellate review of
the reasoning contained in many remand ordersâ but not to âdeprive appellate courts of
jurisdiction to vacate a remand order issued in excess of a district courtâs statutory
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authority.â Ill. Mun. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 849 (7th Cir. 2004)
(describing 28 U.S.C. §§ 1334(d), 1452(b), and 1447(d)); see Firefightersâ Ret. Sys. v.
Citco Grp. Ltd., 796 F.3d 520, 524â526 (5th Cir. 2015); In re Tri-Valley Distrib., Inc.,
533
F.3d 1209, 1216â1217 (10th Cir. 2008).
We need not resolve this lurking question, however, because even if we were to
recognize the exception to Section 1334(d) that Conwayâs arguments presuppose, it would
not apply here, as the district courtâs order was well within its statutory authority. Smith
Developmentâs bankruptcy case proceeded under Chapters 7 and 11, so Section
1334(c)(1)âs carve-out for Chapter 15 cases is not implicated. See Firefightersâ Ret. Sys.,
796 F.3d at 525. And the district court premised its abstention decision on grounds
expressly authorized in Section 1334(c)(1) when it determined that âcomity and respect for
the state courtsâ warranted abstention. Conway, 637 B.R. at 819; see 28 U.S.C.
§ 1334(c)(1) (district court may abstain âin the interest of comity with State courts or
respect for State lawâ). Reviewing the correctness of the district courtâs analysis on that
score is the precise inquiry we lack jurisdiction to undertake. See Lee, 461 Fed. App. at
238.
In response, Conway primarily argues that a district court is without authority to
abstain in favor of a state court that lacks subject-matter jurisdiction due to a Barton
violation. This argument falters because it assumes a Barton violation occurred. Yet the
district court abstained in part because it determined the record did not yet show that Barton
âwould categorically deny the [state] court jurisdiction.â Conway, 637 B.R. at 816; see
McDaniel, 668 F.3d at 156â157 n.1 (noting the suit should proceed ââunless it is clear that
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the claim is without foundationââ (quoting Anderson, 520 F.2d at 1029)). Conwayâs
argument asks us to review the merits of the district courtâs Barton analysis, but on this
record, doing so would be akin to reviewing the merits of the district courtâs abstention
decision, which Section 1334(d) forbids.
Conway also suggests the district court had no authority to enter an abstention order
because, under Barton, the district court itself lacked jurisdiction over Smith
Developmentâs malpractice claims. This argument fares no better than the first. Barton
concerns subject-matter jurisdiction over a separate action, not jurisdiction over the
proceedings in which a party seeks Barton protection in the first place. And even if we
accepted the argumentâs doubtful premise, it fails on its own logic because the bankruptcy
court issued a report and recommendation to the district court, thereby authorizing the
district court to rule on the matter.
Finally, Conway contends that if we dismiss this appeal for lack of jurisdiction, the
parties will effectively be out of court. See Quackenbush, 517 U.S. at 712â714; Moses H.
Cone Memâl Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983). While this
argument may have merit as applied to other types of abstention, here âCongress has
expressly limited appellate jurisdiction.â Tri-Valley Distrib., 533 F.3d at 1216 (reasoning
Section 1334(d) supersedes ordinary application of the collateral-order doctrine). And as
discussed, even if we recognized a narrow exception to Section 1334(d)âs clear
jurisdictional bar, the district courtâs order would not fall within it.
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III.
Section 1334(d) precludes our review of Conwayâs appeal; therefore, we dismiss
the appeal for lack of subject-matter jurisdiction. Because we hold that Section 1334(d)
controls, we need not address the separate arguments Smith Development raised in its
motion to dismiss, which we dismiss as moot.
DISMISSED
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