United States of America et al v. Hawker Beechcraft Corporation
MEMORANDUM AND ORDER granting 1 Motion for leave to appeal from the August 2, 2013 decision of the United States Bankruptcy Court for the Southern District of New York (Bernstein, J.)(the "Decision"), which dismissed in part the complaint filed in their adversary proceeding in the Chapter 11 reorganization case of Hawker Beechcraft Corporation ("HBC"). In re Hawker Beechcraft, Inc., 493 B.R. 696 (Bankr. S.D.N.Y. 2013).... For the foregoing reasons, plaintiffs' motion f or leave to file an interlocutory appeal (Dkt. No. 1) is GRANTED. Plaintiffs are directed to file their brief on appeal, together with the record on appeal, by January 13, 2014. Defendants' answering brief is due January 27, 2014, and plaintiffs' reply is due February 3, 2014. SO ORDERED. (Signed by Judge P. Kevin Castel on 12/17/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _ _ _::--_ _
13 Misc. 373 (PKC)
HAWKER BEECHCRAFT, INC., et al
Chapter II Case No.
UNITED STATES OF AMERICA EX REL. DONALD
MINGE AND DAVID KIEHL AND DONALD
MINGE AND DAVID KIEHL INDIVIDUALLY,
Chapter II Adversary
Proceeding No. 12-01890
HAWKER BEECHCRAFT CORPORATION,
CASTEL, District Judge:
Plaintiffs move for leave to appeal from the August 2,2013 decision of the United
States Bankmptcy Court for the Southern District of New York (Bernstein, J.) (the "Decision"),
which dismissed in part the complaint filed in their adversary proceeding in the Chapter II
reorganization case of Hawker Beechcraft Corporation ("HBC"). In re Hawker Beechcraft, Inc.,
493 B.R. 696 (Bankr. S.D.N.Y. 2013). In that adversary proceeding, plaintiffs sought a
determination that their claims against HBC under the False Claims Act ("FCA") were not
dischargeable in HBC's Chapter II reorganization proceeding. The Bankruptcy Court found
that plaintiffs' claims for penalties and damages were dischargeable, but declined to dismiss the
adversary proceeding with respect to plaintiffs' potential claims for attorneys' fees and expenses.
For the reasons set f01th below, leave to appeal is granted.
A. The FCA Claims, the Chapter 11 Case, and the Adversary Proceeding
The facts summarized herein are more fully set f01th in the Decision. Hawker
Beechcraft, 493 B.R. at 699-701. Plaintiffs Donald Minge and David Kiehl are f01IDer
employees ofTECT Aerospace, Inc. or TECT Aerospace Wellington, Inc. (together, "TECT"),
two subcontractors of defendant HBC, a manufacturer of military aircraft. On July 27, 2007,
plaintiffs filed a qui tam suit under the FCA against, inter alia, HBC and TECT, in the United
States District Court for the District of Kansas (the "Kansas Action"). U.S. ex rei Minge v.
TECT Aerospace, Inc., No. 07-1212-MLB. Plaintiffs alleged that defendants made
misrepresentations in their certifications to the government regarding certain components
manufactured by TECT and incorporated into military aircraft sold to the government. As
provided for under the FCA, plaintiffs sought to recover triple the damages sustained by the
government (totaling $2.3 billion), in addition to a civil penalty of$II,OOO for each ofthe 347
violations alleged (totaling $3.8 million), plus attorneys' fees and costs.
On May 3, 2012, HBC and certain affiliates filed a petition for reorganization
under chapter 11 of the Bankruptcy Code, staying the Kansas Action as to HBC. The Court in
the Kansas Action further stayed the action as to all patties on November 16, 2012. U.S. ex rei
Minge v. TECT Aerospace, Inc., No. 07-1212-MLB, Dkt. No. 380 (Nov. 16,2012). On June 5,
2012, the debtors' appointed claims agent mailed a "Notice of Chapter 11 Bankruptcy Cases,
Meeting ofO'editors, & Deadlines," dated June 5, 2012 (the "Notice"), to creditors and other
parties in interest. The Notice was based on Official F01ID 9F, a model form intended for use in
Chapter 11 cases in which the debtor is a corporation or partnership. The Notice provided that
the creditors' meeting required under 11 U.S.C. § 341 would take place on June 26, 2012. The
second page of the Notice provided infonnation with respect to the discharge of debts upon
confhmation of a Chapter 11 plan, notifying recipients that, in order to avail themselves of the
discharge exception provided under 11 U.S.C. § 1141(d)(6)(A), they were required to file a
complaint with the bankruptcy clerk's office by a deadline specified under the heading "Deadline
to File a Complaint to Detenl1ine Dischargeability of Cella in Debts" on the first page of the
Notice. That section ofthe Notice did not provide a date, but instead stated that "Notice of
deadline will be sent at a later time."
Plaintiffs commenced an adversary proceeding on September 27, 2012, seeking a
dischargeability determination with respect to their FCA claims against HBC in the Kansas
Action. Their complaint alleged that the FCA claims in the Kansas Action were exempt from
discharge under 11 U.S.C. § 1141(d)(6)(A). Specifically, plaintiffs sought a determination of
nondischargeability based on both grounds set forth in section 1141(d)(6)(A), alleging that their
debt was both "of a kind specified in section 523(a)(2)(A) owed to a domestic governmental
unit" and "debt owed to plaintiffs as a result ofthe action they had filed under Subchapter III of
chapter 37 of title 31 of the United States Code." HBC moved to dismiss plaintiffs' adversary
B. The Bankruptcy COUll'S Decision
On August 2, 2013, the Banktuptcy COUll issued the Decision, dismissing
plaintiffs' adversary complaint insofar as their FCA claims sought damages and penalties. 493
B.R. at 713. Because HBC's plan ofreorganization was confirnled in FeblUary 2013, the
Decision had the effect of confinning the discharge of plaintiffs' claims for damages and
penalties under the FCA. ld. The Bankt11ptcy Court, however, did not rule on "whether or to
what extent the Plaintiffs have personal claims against" HBC, and thus permitted plaintiffs'
adversary proceeding to proceed with respect to any potential claims for attorneys' fees and
expenses recoverable under 11 U.S.C. §§ 3730(d)(3) and (4). Id.
The Bankruptcy Court's analysis focused on the interpretation of 11 U.S.C. §
1141 (d)(6), a provision enacted as patt of the Bankruptcy Abuse Prevention and Consumer
Protection Act of2005 ("BAPCPA"). This provision added limited exemptions to the otherwise
comprehensive discharge provided for corporate debtors under 11 U.S.C. § 1141(d)(I). Section
Notwithstanding paragraph (1), the confhmation of a plan does not discharge a
debtor that is a corporation from any debt(A) of a kind specified in paragraph (2)(A) or (2)(B) of section 523(a) that
is owed to a domestic govermnental unit, or owed to a person as the result
of an action filed under subchapter III of chapter 37 of title 31 or any
similar State statute ....
The Bank11lptcy Court's analysis parsed subparagraph (A) into two independent clauses
separated by the comma following "domestic governmental unit." 493 B.R. at 709. Thus, the
first clause ("Clause 1") excepts from discharge any debt "of a kind specified in paragraph
(2)(A) or (2)(B) of section 523(a) that is owed to a domestic govermnental unit," and the second
clause ("Clause 2") excepts any debt "owed to a person as the result of an action filed under
subchapter III of chapter 37 of title 31 or any similar State statute[.],,1 Because they pursued
their qui tam claims as relators on behalf of the United States but also stood to recover a portion
of any damages awarded in a successful claim, plaintiffs argued that their claims were exempt
under both clauses of section 1141 (d)(6)(A). As Judge Bernstein explained, under the
I Section 523(a)(2) provides in relevant part that an individual debtor is not discharged from any debt "(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by-- (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's fmaneial
condition; [or] (13) nse of a statement in writing-- (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services,
or credit reasonably relied; and (iv) that the debtor cansed to be made or published with intent to deceive ....
Subchapter III of chapter 37 of title 31 is entitled "Claims Against the United States Govennnent" and includes,
inter alia, the provisions of the FCA. See 31 U.S.C. §§ 3729-3733.
Bankruptcy Code there are generally "two types of exceptions to discharge: (1) those that are
self-executing and (2) those that require the creditor to seek a determination of dischargeability
in the bankruptcy court by a fixed deadline, failing which the exception does not apply and the
debt is discharged." 493 B.R. at 701 (citing 11 U.S.C. § 523(c)(1)).
The Decision included several holdings, tlu'ee of which plaintiffs seek to appeal.
In the first challenged holding, the Court concluded that 11 U.S.C. § 523(c)(I) applies to Clause
1, and thus a creditor seeking an exception to discharge under Clause 1 is required to timely
move for such relief. The applicable deadline, set forth in Rule 4007(c) of the Federal Rules of
Bankmptcy Procedure, requires creditors to file such a complaint "no later than 60 days after the
first date set for the meeting of creditors under [11 U.S.C.] § 341 (a)," unless the court extends
the deadline for cause. Hawker Beechcraft, 493 B.R. at 705 (citing European American Bank v.
Benedict (In re Benedict), 90 F.3d 50, 53 (2d Cir. 1996)). Rule 4007(c) further provides that the
bankruptcy court "shall give all creditors no less than 30 days' notice of the time so fixed .... "
Having thus found Bankruptcy Rule 4007(c) applicable to plaintiffs' claims under Clause 1, the
cOUli went on to conclude that plaintiffs had failed to comply with the deadline set forth in that
Rule. Id. at 708. This is the second holding challenged by plaintiffs.
Addressing plaintiffs' claims under Clause 2, the court held that Clauses 1 and 2
of 11 U.S.C. § 1141 (d)(6)(A) were independent of one another, and that section 523(c)(1)
therefore did not apply to Clause 2. In other words, the cOUli found the exception set forth in
Clause 2 to be a self-executing exception to discharge, such that any determination of discharge
sought under Clause 2 would not be time-balTed for failure to comply with Bankruptcy Rule
4007(c). However, the court further held that plaintiffs' gill tam claims for damages and
penalties were not "debts owed to a person" within the meaning of the FCA and thus did not
qualify for the Clause 2 exception. Id. at 712. This is the third and final holding challenged by
The Banktuptcy Court also concluded that claims based on payment of reasonable
attorneys' fees, costs, and expenses to which a successful qui tam plaintiff is entitled under 11
U.S.C. §§ 3730(d)(I) and (2) are "debts owed to a person" within the meaning of Clause 2. Id. at
712. Thus, the Decision resulted in the discharge of plaintiffs' gill tam claims against HBC
insofar as they sought damages and penalties, but did not terminate the adversary proceeding
altogether: the court declined to dismiss plaintiffs' complaint "to the extent that it alleges that a
claim for attol11eys' fees and expenses is non-dischargeable." Id. at 712-13. Plaintiffs timely
moved for leave to file an interlocutory appeal.
C. STANDARD OF REVIEW
In bankruptcy cases, district courts have jurisdiction to hear appeals from final
judgments, orders, and decrees, and "from interlocutory orders and decrees [) of bankruptcy
judges entered in cases and proceedings referred to the bankruptcy judges under [28 U.S.C. §
157]." 28 U.S.C. § 158(a). The standards for detelmining an order's finality in bankruptcy
differ from those applicable to ordinary civil litigation, because "a bankruptcy proceeding is
umbrella litigation often covering numerous actions that are related only by the debtor's status as
a litigant and that often involve decisions that will be unreviewable if appellate jurisdiction exists
only at the conclusion of the bankruptcy proceeding." In re SOImax Indus., Inc., 907 F.2d 1280,
1283 (2d Cir. 1990). Thus, "the concept of finality that has developed in bankruptcy matters is
more flexible than in ordinary civil litigation." In re Hooker Investments. Inc., 937 F.2d 833,
836 (2d Cir. 1991). In the Second Circuit, a bankruptcy court's order is final if it "completely
resolvers] all of the issues pertaining to a discrete claim, including issues as to the proper relief."
In re Integrated Res., Inc., 3 F.3d 49,53 (2d Cir. 1993).
In exercising their discretion as to whether to grant leave to appeal an
interlocutory order in a bankruptcy case, district courts have generally applied the standards set
forth in 28 U.S.C. § 1292(b).
Inre Bemard L. MadoffInv. Securities LLC, Nos. 11
Misc. 337, 11 Misc. 338, 11 Misc. 352,2012 WL 5511952, at *2 (S.D.N.Y. Nov. 14,2012); In
re Adelphia Commc'ns Corp., 333 B.R. 649,658 (S.D.N.Y. 2005). Under section 1292(b), in
order for a court to grant leave for a party to file an interlocutory appeal, the order being
appealed must "(1) involve a controlling issue of law (2) over which there is substantial ground
for difference of opinion," and the movant must also show that (3) an immediate appeal would
materially advance the ultimate termination ofthe litigation." 28 U.S.C. § 1292(b). Further,
"leave to appeal from interlocutory orders should be granted only in exceptional circumstances
[that] ... overcome the general aversion to piecemeal litigation and justify depal1ing fi'om the
basic policy of postponing appellate review until after the entry of a final judgment." Picard v.
Estate of Madoff, 464 B.R. 578, 582 (S.D.N.Y. 2011) (citation and quotation omitted); see also
Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cit'. 1996) ("It is a basic tenet of
federal law to delay appellate review until a final judgment has been entered."); Adelphia, 333
B.R. at 658.
Under the Second Circuit's standard for finality in a bankruptcy case, the
Bankruptcy Court's decision was not a final order. See Integrated Resources, 3 F.3d at 53.
Although an order dismissing a complaint objecting to the discharge of the debtor under 11
U.S.C. § 523 would be a final order, see Matter of Weber, 892 F.2d 534, 537 (7th Cit'. 1989),
here, the adversary proceeding remains open because the Bankruptcy Court declined to dismiss
plaintiffs' complaint to the extent that it alleges a claim for atto111eys' fees and expenses, and the
court has yet to determine whether and to what extent plaintiffs have personal claims against
HBC. Hawker Beechcraft, 493 B.R. at 712-13. Thus, the Court tU111S to consideration ofthe
standards for whether or not to grant leave to file an interlocutory appeal under 11 U.S.C. §
B. Section 1292(b) Factors
At the outset, the Court notes that the motion for leave to file an interlocutory
appeal pertains to plaintiffs' adversary proceeding in the HBC banklUptcy case, and not to any
other proceeding. Accordingly, the section 1292(b) factors are appropriately considered in
cOlmection with this adversary proceeding, and not in connection with the HBC Chapter 11 case
as a whole or the Kansas Action.
"A controlling question oflaw exists if: (1) reversal of the district com1's opinion
could result in dismissal of the action, (2) reversal of the district court's opinion, even though not
resulting in dismissal, could significantly affect the conduct of the action, or (3) the certified
issue has precedential value for a large number of cases." In re Lloyd's Am. TlUst Fund Litig.,
96 Civ. 1262 (RWS), 1997 WL 458739, at *4 (S.D.N.Y. Aug. 12, 1997) (citing Klinghoffer v.
S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990)). Although a reversal here would not result
in dismissal of the adversary proceeding, it would undoubtedly significantly affect the conduct of
the adversary proceeding. The Bankruptcy Court's decision rendered a final detennination that
plaintiffs' FCA claims seeking damages and penalties were dischargeable. As it stands, the only
issues remaining in the adversary proceeding are whether plaintiffs have asserted claims to
recover attomeys' fees and expenses in their FCA action, and, ifso, whether those claims are
dischargeable. Reversal ofthe Bankruptcy Court's decision in whole or in part would broaden
the inquiry before the Bankruptcy Court to include consideration of plaintiffs' substantive FCA
claims, rather than only the discrete and perhaps collateral issues relating to attorneys' fees and
expenses. Moreover, since the Bankruptcy Court's decision resolved issues of first impression in
any court relating to the interpretation of 11 U.S.C. § 1141(d)(6), it is likely that the issue here
will have precedential value for a significant number of cases.
There may be "substantial ground for difference of opinion" with respect to the
legal issue presented for interlocutory appeal when "(1) there is conflicting authority on the
issue, or (2) the issue is patiicularly difficult and of first impression for the Second Circuit." In
re Lloyd's Am. Trust Fund Litig., 1997 WL 458739, at *5 (citing Klinghoffer, 921 F.2d at 25).
Here, the three issues presented on appeal are difficult, calling for complex statutory
interpretation and addressing the intersections between different provisions of the Bankmptcy
Code, the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, and the Bankruptcy
Code and the FCA, respectively. The two issues relating to the interpretation of the language of
11 U.S.C. § 1141 (d)(6)(A) are of first impression in the Second Circuit and further appear to be
of first impression in any federal cOUli. Regarding the separate issue relating to notice
requirements under Bankruptcy Rule 4007(c), the Bankruptcy COUli acknowledged the existence
of conflicting authority in district and bankruptcy courts. Hawker Beechcraft, 493 B.R. at 70608. Thus, the second section 1292(b) factor is satisfied.
With respect to the final section I 292(b) factor, immediate appeal is considered to
materially advance the tennination of the litigation if "appeal promises to advance the time to
trial or to shorten the time required for trial." In re Oxford Health Plans, Inc., 182 F.R.D. 51, 53
(S.D.N.Y. 1998) (quoting Charles A. Wright & Arthur Miller, Federal Practice & Procedure §
3930 at 432 (2d ed. 1996)). To date, the adversary proceeding at issue has not been scheduled
for trial. Granting leave to file interlocutory appeal at this juncture will ensure that, should the
matter proceed to trial, the Bankruptcy Court will fully adjudicate the issue of dischargeability of
plaintiffs' FCA claims. Such an appeal will foreclose the possibility that the Bankmptcy Couti
will adjudicate the discharge ability of plaintiffs' claims for attomeys fees and expenses, only to
have to separately reconsider the dischargeability of plaintiffs' substantive FCA claims on
In some cases, courts have declined to grant leave to file interlocutory review
becanse the record has not been fully developed.
Picard v. Katz, 466 B.R. at 208-09.
Unlike such cases, here plaintiffs' claims for damages and penalties have been dismissed from
the adversary proceeding, and the factual record is therefore closed with respect to these claims.
Hawker Beechcraft, 493 B.R. at 713 ("The gill tam claims asserted against Hawker in the Kansas
Action and this adversary proceeding are dischargeable, and were discharged under the Debtors'
confim1ed plan.") It is also tme that immediate appeal may be inappropriate ifthere is a good
prospect that the certified question may be rendered moot by further proceedings in another
Oneida Indian Nation of New York State v. Oneida Cnty., 622 F.2d 624, 628-29
(2d Cir. 1980). In this case, however, there is no indication that the Kansas Action will be
terminated any time in the near future, even if the stay were to be lifted.
C. Exceptional Circumstances
This case also presents exceptional circumstances justifying a grant of
interlocutory review. As discussed, the Bankruptcy Court's resolution of difficult questions of
first impression resulted in the bifurcation of plaintiffs' claims into two separate components.
This unique bifurcation itself is the only reason that the court's order of dismissal was not an
inm1ediately appealable final order. Further, although the Bankmptcy Court noted that plaintiffs'
potential claims for attomeys' fees and expenses "may be substantial," Hawker Beechcraft at
712, any issues relating to claims for attorneys' fees and expenses may be considered an
essentially collateral matter when compared to plaintiffs' substantive claims for damages and
penalties. Cf. People Who Care v. Rockford Bd. ofEduc. Dist. No. 205, 921 F.2d 132, 134 (7th
Cir. 1991) (disputes about the quantum of attorneys' fees and litigation expenses are an
essentially collateral matter not jnstifying a grant of interlocutory review). Taken together, these
considerations justify departure from the final judgment rule.
For the foregoing reasons, plaintiffs' motion for leave to file an interlocutory
appeal (Dkt. No. I) is GRANTED. Plaintiffs are directed to file their brief on appeal, together
with the record on appeal, by January 13, 2014. Defendants' answering brief is due January 27,
2014, and plaintiffs' reply is due February 3, 2014.
P. Kevm Castel
United States District Judge
Dated: New York, New York
December 17, 2013
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