by Where the debtor failed to timely appeal the bankruptcy court’s holding that it lacked jurisdiction over his motion for damages based on violation of the automatic stay, the BAP did not have jurisdiction to rule on the debtor’s petition for writ of mandamus concerning that same holding. Ozenne v. Chase Manhattan Bank, No. 11-60039 (9th Cir. Nov. 9, 2016).
Gary Ozenne has filed many bankruptcy petitions and various appeals—at least two of which were denied cert in the Supreme Court. The petition for writ of mandamus at issue here involves the bankruptcy court’s refusal to address his challenge to the foreclosure of his residence after his fifth chapter 13 bankruptcy was dismissed for failure to make required payments. The petition for the writ was the most recent of many attempts by Mr. Ozenne to obtain a finding that the foreclosing Bank violated the automatic stay. In an early challenge to the foreclosure, the bankruptcy court denied his motion to reopen, and his subsequent appeals failed. He filed a second motion to reopen four years after his first. Citing lack of jurisdiction, the bankruptcy court declined to rule on the motion. While that case was on appeal, Mr. Ozenne filed his first petition for writ of mandamus in the Ninth Circuit. That petition was denied as was Mr. Ozenne’s subsequent petition for cert. Not one to give up easily, Mr. Ozenne filed yet another motion in the bankruptcy court seeking damages against the Bank for violation of the automatic stay. The bankruptcy court again found that it lacked jurisdiction over the motion. Instead of appealing this denial, Mr. Ozenne filed a petition for writ of mandamus in the BAP. After finding that it had jurisdiction, the BAP denied the motion.
On appeal, the Ninth Circuit found that the BAP “lacked jurisdiction under the All Writs Act, because the BAP, established by the circuit judicial council pursuant to 28 U.S.C. § 158(b)(1), was not ‘established by Act of Congress.’ Ozenne v. Chase Manhattan Bank (In re Ozenne), 818 F.3d 514, 515 (9th Cir. 2016).” The circuit court agreed to rehear the case en banc in light of Judge Bybee’s opinion that, while its conclusion was correct, the court should have avoided the constitutional issue.
On rehearing, the court, citing Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004), delineated three requirements for issuance of the extraordinary remedy of mandamus. First, the writ must be the petitioner’s only available remedy. Second, the petitioner’s right to the writ must be “clear and indisputable.” Third, the issuing court must be satisfied that the remedy is appropriate. The court noted that in the Ninth Circuit there are additional requirements that: 1) there be prejudice or damage to the petitioner if the writ is denied, 2) the order the petitioner seeks to overturn be clearly erroneous and oft-repeated; and 3) the order present new issues of law and important problems. United States v. U.S. Dist. Court for Dist. of Nev. (In re United States), 791 F.3d 945, 955 & n.7 (9th Cir. 2015).
Though the court found that Mr. Ozenne had failed to fulfill any of the requirements for mandamus, it held that the first requirement alone—lack of any other remedy—spelled doom for Mr. Ozenne’s petition. Mandamus is not available as a substitute for appeal. Ultimately, the court found that Mr. Ozenne’s petition was merely a disguised late appeal and that the BAP had no jurisdiction over an untimely appeal.