Stephen v. Fukushima

Filing 5

ORDER issued by BAP on 6/1/2011 TRANSFERRING case to District Court for the limited purpose of ruling on the Motion for IFP. CASE REOPENED. (Waggoner, D)

Case: 10-1511 Document: 009183696

Filed: 06/01/2011

Page: 1 of 14

FILED
JUN 1 2011
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

FILED

OF THE NINTH CIRCUIT
In re:
JIMMIE EARL STEPHEN,
Debtor.

JIMMIE EARL STEPHEN,
Appellant,
v.

ALAN S. FUKUSHIMA, Trustee;
UNITED STATES TRUSTEE,
Appellees.

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Jun 01, 2011

BAP No.

EC-10-1511

Bk. No.

CLERK, U.S. DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

10-50583

CAED Case No. 2:11-mc-0037 MCE GGH (PS)

ORDER TRANSFERRING IFP MOTION
TO DISTRICT COURT
(Immediate Response Required)

Before: DUNN and JURY, Bankruptcy Judges.
Appellant filed a motion for leave to proceed in forma
pauperis on March 25, 2011.

On April 7, 2011, the panel issued

its order transferring the in forma pauperis motion to the United
States District Court for the Eastern District of California.

In

the April 7, 2011 order, the panel explained that under the
holding of Perroton v. Gray (In re Perroton), 958 F.2d 889 (9th
Cir. 1992) and Determan v. Sandoval (In re Sandoval), 186 B.R.
490, 496 (9th Cir. BAP 1995), the Bankruptcy Appellate Panel has

Case: 10-1511 Document: 009183696

Filed: 06/01/2011

Page: 2 of 14

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.
On April 28, 2011, the United States District Court for the
Eastern District of California issued an Order wherein it
concluded that “bankruptcy courts are not courts separate and
apart from district courts, but rather, the ‘bankruptcy court’ is
simply a unit of the larger district court.”

Stephen v.

Fukushima, No. 11 MC 0037 MCE GGH PS (E.D.Cal. filed April 28,
2011).

The District Court concluded that “[w]ithin their subject

matter jurisdiction, 28 U.S.C. § 157, bankruptcy judges have
authority to grant in forma pauperis status as would any other
judge of the district court.”

Id.

Based on this conclusion, the

District Court transferred the in forma pauperis motion to the
United States Bankruptcy Court for the Eastern District of
California.

On May 12, 2011, the Bankruptcy Court transferred

the in forma pauperis motion to the Bankruptcy Appellate Panel.
Unfortunately, the Ninth Circuit Court of Appeals has
expressly ruled that a “bankruptcy court is not a ‘court of the
United States’ under the definition of that phrase contained in
§ 451 and does not have the authority to waive fees. . .”
Perroton, 958 f. 2d at 896 (emphasis added).

“Logic dictates

that if bankruptcy courts are not ‘courts of the United States,’
2

Case: 10-1511 Document: 009183696

Filed: 06/01/2011

then neither is the Bankruptcy Appellate Panel.”

Page: 3 of 14

In re Sandoval,

186 B.R. at 496.
The Ninth Circuit Court of Appeals expressly rejected the
argument that “bankruptcy courts are not courts separate and
apart from district courts, but rather, the ‘bankruptcy court’ is
simply a unit of the larger district court.”
Finally, even if a bankruptcy court is not a “court of
the United States” under § 451 and thus lacks direct
authority to act under § 1915(a), it could be argued
that the bankruptcy court nonetheless has the authority
to waive fees under 28 U.S.C. § 157(a). Section 157(a)
provides that: “any and all cases under title 11 and
any or all proceedings arising under title 11 or
arising in or related to a case under title 11 shall be
referred to the bankruptcy judges for the district.”
Thus, notwithstanding its lack of authority to act
under § 1915(a), it could be argued that the bankruptcy
court may waive fees because, in delegating the
authority to the bankruptcy court to hear a case under
Title 11, the district court also delegates its
authority to entertain a petition to proceed in forma
pauperis under § 1930(b) or (c).FN17 This argument,
however, also fails given the clear expression of
congressional intent to exclude the bankruptcy court
from those courts authorized to waive fees under
§ 1915(a) given the legislative history of § 451
discussed above. This conclusion is bolstered by the
fact that § 157 was passed into law in the same piece
of legislation that deleted the bankruptcy court
language from § 451. BAFJA, P.L. No. 98-353, Title I,
§ 104(a), 98 Stat. 340 (July 10, 1989).
Perroton, 958 F.2d at 896 (footnote omitted)(emphasis added).
Accordingly, bankruptcy courts and bankruptcy appellate panels
cannot grant in forma pauperis motions and therefore must refer
then to a “court of the United States” with authority to rule on
3

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such requests.
Accordingly, appellant's in forma pauperis motion is hereby
once again TRANSFERRED to the United States District Court for
the Eastern District of California for the limited purpose of
ruling on the in forma pauperis motion.
It is appellant's responsibility to take all necessary steps
to have the in forma pauperis motion considered by the District
Court within a reasonable period of time.
No later than Thursday, June 30, 2011, appellant must file
with the Bankruptcy Appellate Panel and serve on opposing counsel
a written response which includes as an exhibit a copy of the
District Court’s order on the in forma pauperis motion or an
explanation of the steps appellant has taken to have the in forma
pauperis motion considered by the District Court.
For the convenience of the District Court, a copy of the
notice of appeal, the order on appeal and the in forma pauperis
motion will be forwarded to the District Court for consideration.

4

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General Docket
U. S. Bankruptcy Appellate Panel for the Ninth Circuit
Bankruptcy Appellate Panel Docket #: 10-1511
Jimmie Stephen v. Alan Fukushima, et al
Appeal From: California Eastern - Sacramento
Fee Status: fee due

Docketed: 12/23/2010

Case Type Information:
1) Bankruptcy
2) Chapter 7 Non-Business
3) null
Originating Court Information:
District: 0972-2 : 10-50583
Trial Judge: Robert S Bardwil, U.S. Bankruptcy Judge
Date Filed: 11/19/2010
Date Order/Judgment:
Date NOA Filed:
11/30/2010
12/16/2010

Date Rec'd BAP:
12/22/2010

Prior Cases:
None
Current Cases:
None
Panel Assignment:

Not available

In re: JIMMIE EARL STEPHEN
Debtor
-----------------------------JIMMIE EARL STEPHEN, C56483
Appellant

Jimmie Earl Stephen
[NTC Pro Se]
P.O. Box 4000-22H-3-L
Vacavilla, CA 95696

v.
ALAN S. FUKUSHIMA, Trustee
Appellee

Alan S. Fukushima
[NTC Pro Se]
#200
9245 Laguna Springs Dr
Elk Grove, CA 95758

UST- UNITED STATES TRUSTEE, SACRAMENTO
Appellee

ust- United States Trustee, Sacramento
[NTC Pro Se]
Robert T Matsui United States Courthouse
501 I Street, Room 7-500
Sacramento, CA 95814

In re: JIMMIE EARL STEPHEN
Debtor
-----------------------------JIMMIE EARL STEPHEN, C56483
Appellant
v.
ALAN S. FUKUSHIMA, Trustee; UST- UNITED STATES TRUSTEE, SACRAMENTO
Appellees

12/22/2010

Received notice of appeal filed in Bankruptcy Court on 12/16/2010, notice of referral, transmittal form. (VJ)
16 pg, 2.19 MB

01/04/2011
3 pg, 78.16 KB

01/18/2011
3 pg, 43.51 KB

02/22/2011

Notice to all parties and Bankruptcy Court RE: BAP Case number assigned: EC-10-1511. Sent
Bankruptcy Record Request Form to Bankruptcy Court. (VJ)
Filed order (Deputy Clerk: sms) IT IS ORDERED THAT no later than Monday, February 7, 2011, appellant
must file a response with the BAP indicating why the scope of this appeal should not be limited to review
of the order dismissing the bankruptcy case.; dated: 01/18/2011. (VJ)
Mail returned by U.S. Post Office on 02/22/2011; Document: Clerk's Order re: Scope of Appeal for Jimmie
Earl Stephen ; filed on 01/18/2011. (VJ)

03/07/2011
2 pg, 42.49 KB

Filed order (HOLLOWELL) Since the notice of appeal was timely filed as to the dismissal order under the
"prison mail-box" rule. IT IS FURTHER ORDERED THAT no later than Monday, March 28, 2011,
appellant must file with the BAP a written response indicating that the filing and docketing fees, the
designation of record, the statement of issues, and a notice re transcripts have all been filed in the
bankruptcy court. (VJ)

03/22/2011

Mail returned by U.S. Post Office on 03/22/2011; Document: Order re: Prosecution of Appeal for Jimmie
Earl Stephen ; filed on 03/07/2011. Reason: Mail Refused (VJ)

03/25/2011

Filed original and copies of Party Jimmie Earl Stephen's motion to proceed in forma pauperis; served on
03/22/2011. (VJ)

6 pg, 1.02 MB

04/07/2011
14 pg, 1.15 MB

04/19/2011

Filed order (HOLLOWELL and JURY); Appellant's IFP Request 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. No later than Monday, May 9, 2011, appellant must file with the BAP 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. (VJ)

3 pg, 47.37 KB

Sent BRIEFING ORDER & NOTICE to appellant. Copies to all parties. Appellant Jimmie Earl Stephen's
opening brief due 06/03/2011 (VJ)

2 pg, 42.64 KB

Notice of Deficiency sent to Appellant RE: Record on appeal not filed for lack of prosecution. Re:
Response Due: 05/03/2011. cc: All parties. (VJ)

04/19/2011
04/29/2011

Received from U.S. District Court copy of document(s) re: IFP Order ;served on 04/28/2011. (VJ)
2 pg, 277.27 KB

05/16/2011
2 pg, 42.64 KB

05/24/2011

Notice of Deficiency sent to Appellant RE: Record on appeal not filed for lack of prosecution. Re:
Response Due: 05/31/2011. cc: All parties. (VJ)
Filed Party Jimmie Earl Stephen's response to IFP order filed on 04/07/2011; served on 05/19/2011. (VJ)

28 pg, 3.46 MB

Filed order ( Clerk sms: ) ORDER Transferring IFP motion to District Court. ; dated: 06/01/2011. (VJ)

06/01/2011
14 pg, 1.62 MB

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