by by H. Michael Muñiz
There presently exists a rather stunning split of authority among federal courts as to whether published district court decisions are binding on bankruptcy courts within their judicial district.1 Not surprisingly, bankruptcy courts have rendered the overwhelming majority of those decisions.2 If bankruptcy courts sit in pari materia with district courts, it would appear genuinely inarguable that district court decisions would be binding on bankruptcy courts. On the other hand, if bankruptcy courts are lower courts than district courts, their inferiority begs the question how is it conceivable that, in view of the long settled doctrine of hierarchical stare decisis, numerous bankruptcy courts have deemed themselves not bound by district court precedents? Before reaching the legal arguments, it is appropriate to first turn to the doctrine at issue.
Hierarchical Stare Decisis
Under the doctrine of stare decisis, a legal doctrine immersed in our jurisprudence since the late 18th century or over 200 years, In re Mays, 256 B.R. 555, 559 (Bankr. D.N.J. 2000),3 a deliberate or solemn decision of court made after argument on question of law fairly arising in the case and necessary to its determination, is an authority or binding precedent in the same court or in lower courts in the judicial hierarchy in subsequent cases where the very point is again in controversy.4 The doctrine is grounded on the theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed.5
Two centuries ago the U.S. Supreme Court6 enunciated “stare decisis et non quieta movere,” the common law maxim meaning let stand what is decided and do not disturb what is settled and, as the Court itself further stated, “administer the law as I find it [or as found] and . . . follow in the path of authority, where it is clearly defined, even though the path may have been explored by guides in whose judgment the most implicit confidence might not have been originally reposed.”7
“If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it.”8
“To avoid an arbitrary discretion in the courts, it is indispensable that they [lower courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”9
“Stare decisis . . . applies a fortiori to enjoin lower courts to follow the decision of a higher court.”10
“This principle is so firmly established in our jurisprudence that no lower court would deliberately refuse to follow the decision of a higher court.”11
Nearly 100 years after its declaration in Townsend the Supreme Court reiterated, “in its earliest days the Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate [or higher] court.”12 That a lower federal court is “powerless,” “foreclosed” and “bound to carry the mandate of the upper court into execution . . . is indisputable.”13 Moreover, “unless we wish anarchy to prevail within the federal judicial system, precedents of the [higher] court must be followed by the lower federal courts no matter how misguided the judges of the lower courts may think it to be.”14 Though the doctrine of stare decisis is a “principle of policy, and not an inexorable command,”15 it has been made very clear that a lower court s command is to abide by a higher court’s decision.16
Furthermore, adherence to the doctrine of “stare decisis protects the legitimate expectations of those who live under the law, and . . . is one of the means by which exercise of an arbitrary discretion in courts is restrained.”17 It is designed to promote stability and certainty in the law and has special force in the area of statutory interpretation, particularly when persons have acted in reliance on a prior decision.18 In fact, the doctrine of stare decisis is at its zenith where property and contract rights, reliance interests, and statutory interpretation converge.19 Especially where the federal hierarchy of courts is concerned, “precedents [of a higher court] must be followed . . . even though their reason be not obvious at first view, as we clearly owe such deference to former times as not to suppose that they acted without consideration.”20
Thus, the Supreme Court’s unquestionably binding precedents clearly establish that higher court decisions are stare decisis on lower courts. Therefore, published district court decisions constitute binding authority upon bankruptcy courts if bankruptcy courts are lower courts than district courts.
As created under the Bankruptcy Act of 1978 and left undisturbed by the U.S. Congress in the Bankruptcy Amendments and Federal Judgeship Act of 1984, bankruptcy courts were endowed with the attributes that underlie inferior tribunals, U.S. Const. art. I, §8,21 as opposed to the constitutional attributes that underlie district courts; significantly, life tenure and protection from salary diminution, U.S. Const. art. III, §1,22 thereby protected, unlike bankruptcy courts, from executive or legislative fiat.23 These traits of the district court alone are sufficient to establish that the bankruptcy court is not, and cannot be, the equal of the district court. In fact, federal courts may be classified, according to the rights of the judges appointed to staff the court, as Article I or Article III courts. In re Abernathy, 150 B.R. 688, 693 (Bankr. N.D. Ill. 1993). The 11th Circuit Court of Appeals has consistently adhered to the position that the phrase “Court of the United States” be interpreted to mean an Article III court.24 Additionally, 28 U.S.C. §151 establishes in whom the judicial power of the United States is reposed: the Article III district court.25 Further, Title 28 of the U.S. Code provides only a very limited grant of subject matter jurisdiction to the Article I bankruptcy courts; namely, to hear and determine cases and core proceedings only as arising under Title 11. 28 U.S.C. §§151, 157. “As a non-Article III court, the bankruptcy court can only exercise such judicial power under the supervision and control of the district court.” In re Shattuc Cable Corp., 138 B.R. 557, 565 (Bankr. N.D. Ill. 1992). Therefore, not having the constitutionally prescribed protections of Article III courts or the full judicial power of the United States like a district court, and having only the authority that is delegated by the district court, 28 U.S.C. §157(a),26 should make it self-evident that a bankruptcy court is inferior to a district court.
The materially significant constitutional distinctions between Article III, district courts, and Article I, bankruptcy courts, the federal statutory scheme that provides that bankruptcy courts derive their authority to operate from the district court,27 the fact that bankruptcy courts are subject to withdrawal of a case by the district court,28 and the appellate authority district courts possess over bankruptcy courts, 28 U.S.C. §158(a), combined, these attributes make clear the superiority of the district courts and inferiority of the bankruptcy courts. Solidifying this conclusion, the Supreme Court unambiguously stated, “[t]he judicial power of the United States must be exercised by courts having the attributes prescribed in Article III.”29 “It is undisputed that the bankruptcy judges whose offices were created by the Bankruptcy Act of 1978 do not enjoy the protections constitutionally afforded to Article III judges.30 “[T]here is no doubt that the bankruptcy judges created by the Act are not Article III judges.”31 Besides owing its allegiance to the district court, for it is from the district court that the bankruptcy court derives its authority to operate,32 the bankruptcy court is clearly not the equal of the district court, but rather, is an inferior court.33
Though the 11th Circuit Court of Appeals has declined to address the issue, Stroock, Stroock & Lavan v.Hillsborough Holdings Corp., 127 F.3d 1398, 1403 n.3 (11th Cir. 1997), the Second Circuit summarily declared, even though the bankruptcy judge “seemingly disagreed” with the district court decision, “the bankruptcy judge was precluded from granting relief . . . by the decision of [the] District Judge.” United States v. Whiting Pools, Inc., 674 F.2d 144, 146-47 (2d. Cir. 1982). The District Court for the Middle District of Florida in Health Services Credit Union v.Shunnarah, 273 B.R. 671, 672 (M.D. Fla. 2001) elaborated further and stated:
this Court . . . finds that the Bankruptcy Court improperly believes that it is not bound by stare decisis to follow the decision of a single district judge in a multi-judge district. Because a bankruptcy court is an Article I court, and appeals from such court are taken to the Article III courts, which have reversal power over the bankruptcy courts, this court agrees with the reasoning in IRR Supply Centers, Inc. v.Phipps, 217 B.R. 427 (Bankr. W.D.N.Y. 1998), that bankruptcy courts are “inferior” courts for purposes of stare decisis. Therefore, the bankruptcy court in this case is bound by a rendered published district court opinion,34 unless an opinion that contains a different holding is published.
Likewise, the District Court for the Western District of Virginia in Bryant v. Smith, 165 B.R. 176, 180 (W.D. Va. 1994), stated:
the bankruptcy court is not an Article III court. The bankruptcy court functions as an adjunct of the district court. A bankruptcy judge is no more free to ignore the clear precedent of the district court, than is a United States magistrate judge. Moreover, even apart from its adjunct status, the bankruptcy judge is no more free to ignore the clear precedent of this court, than this court is free to disregard the precedent of the Court of Appeals or the Supreme Court. If a bankruptcy judge concludes that the clear nonconflicting precedent of this court was wrongly decided he must, nevertheless, follow that precedent.
The court in In re Phipps, 217 B.R. 427 (Bankr. W.D.N.Y. 1998), exhaustively analyzed the issue of a bankruptcy court being bound by district court decisions within a multijudge district court in the same jurisdiction. In fact, the Phipps court grounded such conclusion on United States v. Whiting Pools, Inc., 674 F.2d 144, 146-47 (2d. Cir. 1982),35 which decision was affirmed (on other grounds) by the Supreme Court.36 The Supreme Court pointedly observed the bankruptcy court “felt bound” by the district court precedent.37 The Phipps court further observed that:
any court whose decisions, even if unanimous, are subject to reversal by a single judge of another court is “inferior” to the reversing court for stare decisis purposes. The fact that a district judge may at any time, “for cause shown,” sua sponte pull from the bankruptcy court any matter before it puts the issue beyond all doubt. A bankruptcy court is bound by a district court published opinion, unless an opinion that contains a different holding is published.38
A year later the Phipps court reaffirmed its holding and found “itself bound by the decision of one district judge, in an earlier case . . . the district court is superior to the bankruptcy court . . . every judge of an inferior court must adhere to the decisions of the superior court and . . . this interpretation of hierarchical stare decisis is commanded by the circuit s decision in United States v. Whiting Pools, Inc., 674 F.2d 144 (2d. Cir. 1982).”39 Moreover, the court, in speaking to those courts that have decided otherwise, further explained why a bankruptcy judge may not do otherwise and must accede to the authority of district court precedents within their judicial district:
If the courts that believe that the In re Phipps holding is wrong are correct, then I am free to disregard a sole District Judge’s explanation as to why I wrongly decided In re Lutgen; I may re-issue my now-reversed Lutgen holding in the context of the present case; and I may hope that any appeal goes to a different District Judge—one who might agree with me. I presume that that is precisely what the courts that disagree with In re Phipps would do in my situation (if they do not find the reviewing court’s teaching to be persuasive). Certainly they could not say that the bankruptcy judge who was reversed is bound, but the other bankruptcy judges are not; their key argument is that there is no “law of the district,” or that “law of the district” cannot be made on the basis of the random selection of a district judge on appeal. That argument collapses if they were to concede that the random assignment of a case to a particular bankruptcy judge who happens to be the one whose decision was reversed, does require obedience to the earlier decision of the district judge who issued the reversal. I have made no effort to ascertain whether those courts feel that a bankruptcy judge is free to reaffirm, in a different case, a ruling that was specifically reversed in an earlier case decided by that same bankruptcy judge. Perhaps they do so feel free. If not, then their arguments in contradiction to Phipps are flawed. I, on the other hand, am comfortable with holding that the result of In re Phipps, is particularly compelling when the single district judge’s holding was rendered in the form of a reversal of the same bankruptcy judge who is now deciding, in a different case, whether he or she must give stare decisis effect to the district judge’s decision. As explained in Phipps, this writer is of the view that (1) any one district judge speaks for the district court, (2) however many judges thereof have ruled, the district court has ruled, (3) the district court is “superior” to the bankruptcy court, that (4) every judge of an “inferior” court must adhere to the decision of the “superior” court, and that (5) within the Second Circuit, this interpretation of hierarchical stare decisis is commanded by the Circuit’s decision in United States v. Whiting Pools, Inc., 674 F.2d 144 (2d Cir. 1982), aff d on other grounds, 462 U.S. 198, 103 S. Ct. 2309, 76 L. Ed. 2d 515 (1983).40
The above is precisely what occurred before the court in In re Fox, 274 B.R. 909, 910 (Bankr. M.D. Fla. 2002). Having been successfully appealed in a prior decision,41 in relevant part, on the issue of whether district court decisions were stare decisis on the lower bankruptcy court, the bankruptcy court was bound by the district court decision and compelled to deny the debtor s motion for relief.42 The court in In re Petersen, 222 B.R. 382, 385 (Bankr. M.D. Fla. 1998), also unqualifiedly affirmed a basic, fundamental tenet of the doctrine of hierarchical stare decisis by stating “[i]n this jurisdiction, the Court is bound by decisions issued from the District Court for the Middle District of Florida, the 11th Circuit Court of Appeals, and the Supreme Court.” Though the Petersen court later receded from its own pronouncement in In re Baker, 264 B.R. 759, 762 (Bankr. M.D. Fla. 2001), it should be clear the court had it right the first time,43 especially since the Baker court s decision was reversed on appeal in Health Services Credit Union v. Baker, Case No. 3:01-cv-989-J-21 (M.D. Fla. 2002).
The court in In re Thorsell, 229 B.R. 593 (Bankr. W.D.N.Y. 1999), concurred fully with the decision in Phipps, which held that under the principles of stare decisis that a decision of the district court will bind all bankruptcy courts for that same district. The district court s decision is a binding determination of the law that the bankruptcy court must thereafter apply until either the district court or higher court rules to the contrary.44 As the bankruptcy court is a unit of the district court, it is bound by the decisions of the district court.45
Even the court in In re Gaylor, 123 B.R. 236, 241 (Bankr. E.D. Mich. 1991),46 whose significance is discussed infra, observed:
the fundamental premise underlying the belief that a district court decision is necessarily binding on a bankruptcy court is that the latter is inferior to the former. It is of course true that inferior courts are bound by decisions of superior courts. Stare decisis applies not only to successive decisions in the same court, but also to decisions in courts owing obedience to that court.
The court in In re Messina, WL 311145 (Bankr. N.D. Ill. 2000), may have stated it most succinctly:
This court knows its position in the federal court hierarchy, which is below that of the district court, the circuit court of appeals, and the United States Supreme Court, all of which exercise appellate jurisdiction over and review of this court’s judgments and orders. The converse is not true as this bankruptcy court has no appellate jurisdiction whatsoever and cannot as a matter of law effectively reverse or undue any final judgment entered by those higher federal courts.47 Under the principle of stare decisis, inferior or lower courts are bound to follow the decisions of superior courts.
“In a bankruptcy case, the district court functions as an appellate court,” whose published decisions serve to bind lower courts within that judicial district.48 Absent a lower court’s acceptance of a higher court’s ruling as precedent that binds the lower court, there would be anarchy. In re Arway, 227 B.R. 216, 219 (Bankr. W.D.N.Y. 1998) citing Hutto v. Davis, 454 U.S. 370, 375, 102 S. Ct. 703, 70 L. Ed. 556 (1982).49 Accordingly, no inferior court may ignore clear higher authority that itself has not been foreclosed by yet higher authority.50 Furthermore, the binding effect of district court decisions over the lower bankruptcy courts serves to promote and foster the constitutional mandate that bankruptcy laws be uniform throughout the United States.51
When considered in the radiant light of centuries of consistent Supreme Court precedents on the doctrine of hierarchical stare decisis, the material constitutional distinctions between the two courts, the federal statutory scheme, and other fundamentally sound federal court decisions, it is abundantly clear that bankruptcy courts are inferior federal courts to district courts and, therefore, bound by published district court decisions.
Analysis of Arguments Contra Stare Decisis Effect
The highest court in the land has observed “the tendency to disregard the precedents . . . has become so strong . . . as . . . to shake confidence in the consistency of decision and leave the courts below on an unchartered sea of doubt and difficulty without any confidence that what was said yesterday will hold good tomorrow.” Mahnich v. Southern Steamship Co., 321 U.S. 96, 113 (1944). With this perspective in mind, if the doctrine of hierarchical stare decisis is somehow insufficient to bind bankruptcy courts to district court decisions, then it seems the only plausible argument, which may stand to support the notion of the nonbinding effect of district court decisions, is if the two courts sit in pari materia or, in other words, are equal courts in the federal hierarchy. However, and to the extent such a notion has not already been put to rest in the negative, an examination of the most frequently utilized contra arguments reveals their unsound reasoning and fatal flaws.
Though not the first in time, the decision in In re Gaylor, 123 B.R. 236 (Bankr. E.D. Mich. 1991), has been credited as the seminal case to hold it was not bound by district court decisions, which in turn has spawned an auspicious line of progeny.52 Prior to 1991, bankruptcy judges assumed that they were bound by the appellate decisions of district judges, but since the holding in Gaylor, there has been a general consensus that decisions of a district judge are not binding on the bankruptcy judges of that same district. In re Barakat, 173 B.R. 672, 678 n.5 (Bankr. C.D. Cal. 1994). The Gaylor opinion essentially sets forth five reasons why the bankruptcy court is not bound by published district court decisions. As the court stated, because 1) no judge within a multijudge district is bound by the decision of other district judges;53 2) such a notion raises insoluble practical problems, i.e., the goal of predictability is not well-served when one lower court judge must look to multiple decisions of higher courts; 3) a decision of the district court cannot be binding on the bankruptcy courts unless it is also binding on the district court as a whole; 4) a bankruptcy judge, acting on behalf of the district court, is not bound to follow the decisions of any single member of the district court, since the decision may not represent the views of the district as a whole;54 and 5) bankruptcy courts are, in a sense, indistinguishable from the district courts.55
The bankruptcy courts that have found themselves indistinguishable from district courts and others who have concluded they are the equal of the district court founded on the theory that as a unit of the district court, they operate on an equal level apparently fail to recognize what seems fairly obvious; if the Congress had wanted to make the bankruptcy court the equal of the district court, the Congress would have done so. The fact is the 1984 amendments allow us to draw inferences from what Congress did not do, In re Thompson, 59 B.R. 690, 695 (Bankr. W.D. Tex. 1986), and the two courts were not made equal therein. Moreover, the Congress would simply have created the bankruptcy courts as Article III courts.56 Being a “unit” of the district court simply means the bankruptcy court is a constituent and isolable member of a more inclusive whole; a member of an aggregate that is the least part to have a clearly definable separate existence which forms a basic element of organization within the aggregate.57 When one considers and acknowledges the scope of control, supervision, powers, and authorities that may be exercised by the district courts over the bankruptcy courts, it appears self-evident that the two courts are anything but equal or indistinguishable, but rather the district court is a superior court to a bankruptcy court. It seems unquestionable that any bankruptcy court that deems itself, in any material sense, indistinguishable from a district court must, a fortiori, fail to comprehend the significant constitutional and statutory distinctions between the two courts.
The Gaylor court and other bankruptcy courts have utilized the conclusion “there is no law of the district,” which emanates from Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 n.7 (3d Cir. 1991),58 wherein the court only addressed the precedential effect of district court decisions in relation to other district court decisions within the circuit. However, the Threadgill court s pronouncement has been expanded well beyond its express context by many bankruptcy courts to deem themselves not bound by higher district court decisions on the basis that “there is no law of the district.” Understood and applied in the context in which the court stated that a decision of a district judge has no binding authority on district judges of the same court,59 the notion bears little, if any, relevance to the issue of a lower, Article I bankruptcy judge being bound by the decisions of a higher, Article III district judge within their judicial district.
The argument that district court decisions cannot bind the bankruptcy courts unless that decision is also binding on the district court as a whole is simply another manner to postulate there is no law of the district, which is an inherently unsupportable premise because it fails to recognize that a district court decision can certainly bind all the bankruptcy courts in the district, without being binding on the other district courts. Further, the notion exudes a lack of legal or substantive foundation because it also fails to recognize that until such time as another district court has ruled otherwise, the law remains stable and predictable. Certainly, the goal to achieve uniform rules of decision that operate consistently throughout the federal court system is best served with adherence to the principles of hierarchical stare decisis.
Though there might be disagreement as to the number of district judges it takes to bind a bankruptcy judge in a subsequent case, there should be no disagreement that there are points at which it can be said that the district court’s view is stare decisis; when all district judges in a multijudge district have agreed,60 or when no other district court judge within that judicial district has opined to the contrary on the issue.61 Though it may not genuinely be argued that the district court, like the Supreme Court and Circuit Court of Appeals, “speaks in one voice,”62 until another voice has concluded to the contrary within that judicial district, adherence to the district court decision abides by the well-settled principles of hierarchical stare decisis.
The possibility that a bankruptcy judge may be faced with being bound by two mutually antagonistic decisions from different judges in the same district on a single issue is an unlikely proposition; this is because judges of the same district court customarily follow previous decisions of their brethren upon the same question except in unusual or exceptional cases,63 even though not bound by them.64 Further, the bankruptcy judge faced with this situation would simply apply the applicable law given the higher, district court decision that is most analogous based on the material facts.
The argument that a lower court judge may have to look to multiple decisions of a higher court is simply untenable. This is precisely what a judge must often do; closely scrutinize and analyze opinions to determine the law as enunciated by higher courts and whether the cases are applicable to the particular matter before the court. Doing so in the context of evaluating district court opinions is no less nor more difficult a task than normal and bankruptcy courts have shown themselves quite capable of distinguishing cases.
Another argument that has been propounded is that a bankruptcy court is not compelled to follow an appellate decision in a different division of the district, because it is outside the chain of appeal of decisions from the court or stated differently, it is not bound to follow a district court decision in a different division of the same district as its own. In re Hubbard, 23 B.R. 671, 672-73 (Bankr. W.D. Ohio 1982). Unfortunately, this argument fails to recognize a fundamental structural component of the federal judiciary, which has been geographically segregated by Congress, not by division, but by “judicial district.”65 In fact, the appointed judges are designated as district judge for the district,66 not as the Hubbard court would suggest, by division. Therefore, the allegiance owed is to the district court for the district67 in which the bankruptcy court sits.
The nimble arguments against or contra the stare decisis effect of published district court decisions upon bankruptcy courts apparently fail to withstand analytical scrutiny, appear self-serving, fundamentally flawed, and pale in comparison or persuasiveness to the authorities and arguments in favor of the binding effect of district court precedents, when duly considered. If, indeed, there has developed a general consensus or modern approach that decisions of a district judge are not binding on the bankruptcy judges of that same district,68 such a development has been initiated and fostered almost exclusively by bankruptcy courts.69
The fundamental constitutional distinctions between district courts and bankruptcy courts, the federal statutory authority that the district courts hold with respect to and in relation to the bankruptcy courts, combined with the forceful wake of Supreme Court precedents on the doctrine of hierarchical stare decisis, not to mention the compelling decisions of other federal courts which recognize their position in the federal hierarchy of courts,70 establish that bankruptcy courts are inferior courts for purposes of stare decisis. A clear understanding of this centuries-old doctrine leads one to the inescapable conclusion that the orderly development of the law, particularly where statutory interpretation and reliance interests involving property and contract rights converge, is best served having bankruptcy courts adhere to district court precedents. It appears inarguable that bankruptcy courts are bound by published district court decisions within their judicial district, unless an opinion that contains a different holding is published. Such a reasoned determination evinces a clear, unambiguous, and fundamentally sound conclusion, pursuant to a legal doctrine—stare decisis—that has been embedded in the fabric of Anglo-American jurisprudence since before the Republic of the United States was formed. q
1 Compare United States v. Whiting Pools, Inc., 674 F.2d 144, 146-47 (2d. Cir. 1982); In re Reid, 237 B.R. 577, 589 (Bankr. W.D.N.Y. 1999); Health Services Credit Union v. Shunnarah, 273 B.R. 671, 672 (M.D. Fla. 2001); In re Fox, 274 B.R. 909, 910 (Bankr. M.D. Fla. 2002); Bryant v. Smith, 165 B.R. 176, 180 (W.D. Va. 1994); In re Woolum, 279 B.R. 865, 871 (Bankr. M.D. Fla. 2002); In re Ragan, 264 B.R. 776, 778 (Bankr. S.D. Fla. 2001); In re Petersen, 222 B.R. 382, 385 (Bankr. M.D. Fla. 1998); In re Presidential Financial Corp., 55 B.R. 746, 751 (Bankr. N.D. Ga. 1985); In the Matter of Selden, 62 B.R. 954, 957-58 (Bankr. N.D. Nebraska 1986); In re Dembrosky, 235 B.R. 245, 247-53 (Bankr. W.D.N.Y. 1999); In re Messina, WL 311145 (Bankr. N.D. Ill. 2000); In re Michigan Real Estate Insurance Trust, 87 B.R. 447, 462 (Bankr. E.D. Mich. 1987); In re St. Louis Freight Lines, 45 B.R. 546, 551 (Bankr. E.D. Mich. 1984); In re Wright, 144 B.R. 943, 949 (Bankr. S.D. Ga. 1992); In re V-M Corp., 23 B.R. 952, 954-55 (Bankr. W.D. Mich. 1982); In re Whitehorn, 99 B.R. 734, 736 (Bankr. N.D. Tex. 1989); In re Johnson-Allen, 67 B.R. 968, 973 (Bankr. E.D. Pa. 1986); In re L.T. Ruth Coal Co., 66 B.R. 753, 758-59 (Bankr. E.D. Ky. 1986); In re Arnold Print Works, Inc., 54 B.R. 562, 568 (Bankr. D. Mass. 1985) aff’d in part, rev’d in part, 61 B.R. 520 (D. Mass. 1986), vacated, 815 F.2d 165 (1st Cir. 1987); In re Moisson, 51 B.R. 227, 229 (Bankr. E.D. Mich. 1985); In re Investment Sales Diversified Inc., 49 B.R. 837, 846 (Bankr. D. Minn. 1985); In re Eaton Land & Cattle Co., 28 B.R. 890, 892 (Bankr. D. Colo. 1983); In re Bill Ridgeway, Inc., 4 B.R. 351, 353 (Bankr. D.N.J. 1980); In re Thorsell, 229 B.R. 593, 597 (Bankr. W.D.N.Y. 1999); In re Phipps, 217 B.R. 427, 430 (Bankr. W.D.N.Y. 1998); In re Arway, 227 B.R. 216, 219 (Bankr. W.D.N.Y. 1998); In re Romzek, 50 B.R. 720, 722 (Bankr. E.D. Mich. 1985); with In re Harris, 155 B.R. 135, 136 (Bankr. E.D. Va. 1993); In re Abernathy, 150 B.R. 688, 693 n.7 (Bankr. N.D. Ill. 1993); In re Maurer, 271 B.R. 207, 211 n.13 (Bankr. M.D. Fla. 2001); In re Johnson, 140 B.R. 850, 856 (Bankr. E.D. Pa. 1992); In re Argo Communications Corp., 134 B.R. 776, 786 n.9 (Bankr. S.D.N.Y. 1991); In re Volpert, 177 B.R. 81, 85 (Bankr. N.D. Ill. 1995); In re Barkley 3A Investigators, Ltd., 175 B.R. 755, 758 (Bankr. D. Kan. 1994); In re Barakat, 173 B.R. 672, 678-79 (Bankr. C.D. Cal. 1994); In re Eiland, 170 B.R. 370, 378 (Bankr. N.D. Ill. 1994); In re Growth Dev. Corp., 168 B.R. 1009, 1016 n.5 (Bankr. N.D. Ga. 1994); In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, 160 B.R. 882, 898 (Bankr. S.D.N.Y. 1993); In re Kennedy, 158 B.R. 589, 595 n.5 (Bankr. D.N.J. 1993); In re Globe Illumination Co., 149 B.R. 614, 618 n.8 (Bankr. C.D. Cal. 1993); In re Shattuc Cable Corp., 138 B.R. 557, 565-67 (Bankr. N.D. Ill. 1992); In re Davis, 134 B.R. 34, 37 n.6 (Bankr. W.D. Okla. 1991); In re Goode, 131 B.R. 835, 840 n.2 (Bankr. N.D. Ill. 1991); In re California Gardens Apartments, Ltd., 130 B.R. 509, 514 (Bankr. S.D. Ohio 1991); In re Rheuban, 128 B.R. 551, 554-55 (Bankr. C.D. Cal. 1991); In re Morningstar Enterprises., Inc., 128 B.R. 102, 106 n.1 (Bankr. E.D. Pa. 1991); In re Gaylor, 123 B.R. 236, 241- 43 (Bankr. E.D. Mich. 1991); In re Windsor Communications Group, Inc., 67 B.R. 692, 698-99 (Bankr. E.D. Pa. 1986); In re Shunnarah, 268 B.R. 657, 660 (Bankr. M.D. Fla. 2001) rev d Health Services Credit Union v. Shunnarah, 273 B.R. 671, 672 (M.D. Fla. 2001); In re Baker, 264 B.R. 759, 762 (Bankr. M.D. Fla. 2001) rev d Health Services Credit Union v. Baker, Case No. 3:01-cv-989-J- 21 (M.D. Fla. 2002); In re Madison Avenue L.P., 213 B.R. 888, 890 n.2 (Bankr. S.D.N.Y. 1997); City of Olathe v. KAR Dev. Assoc., L.P., 180 B.R. 629, 640 (D.C. Kansas 1995); In re Hernandez, LEXIS 760 (N.D. Cal. 1994); In re Mendez, 255 B.R. 143, 147 n.1 (Bankr. D.N.J. 2000); In re McNichols, 255 B.R. 857, 868-69 (Bankr. N.D. Ill. 2000); In re Jamesway Corp., 235 B.R. 329, 337 n.1 (Bankr. S.D.N.Y. 1999); In re Raphael, 230 B.R. 657, 664-65 (Bankr. D.N.J. 1999); In re Hubbard, 23 B.R. 671, 672-73 (Bankr. W.D. Ohio 1982).
2 Through June 2002, bankruptcy courts have rendered 93 percent of the 59 decisions identified.
3 See Richard H. Fallon, Jr., Essay: Stare Decisis and the Constitution, 76 N.Y.U.L. 570, 579 (2001) (observing historians record the doctrine either was established or becoming established at the time of the Constitutional Convention).
4 Internal Revenue Service v. Osborne, 76 F.3d 306, 309 (9th Cir. 1996).
5 Black’s Law Dictionary 978 (6th ed. 1991).
6 It is emphatically the province and duty of the Court to say what the law of the land is. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Cooper v. Aaron, 358 U.S. 1 (1958).
7 Townsend v. Jemison, 50 U.S. 407, 414 (1850).
8 Rogers v. Tennessee, 532 U.S. 451, 473 n.2 (2001) Scalia, J., Stevens, J., Thomas, J., Bryer, J. (Part II) dissenting.
10 Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rhenquist, C.J., O’Connor, J., Souter, J. dissenting.) See Horn v. Kean, 796 F. Supp. 668, 671 (3d Cir. 1986).
11 Hubbard, 514 U.S. at 720.
12 Briggs v. Pennsylvania R Co., 334 U.S. 304, 306 (1948).
13 Sprague v. Ticonic National Bank, 307 U.S. 161, 168 (1939).
14 Hutto v. Davis, 454 U.S. 370, 375 (1982). See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983).
15 Payne v. Tennessee, 501 U.S. 808, 828 (1991).
16 Jaffree v. Board of School Com’rs, 459 U.S. 1314, 1315–16 (1983) (Powell, Circuit Justice).
17 Hubbard v. United States, 514 U.S. 695, 716 (1995) Scalia, J., Kennedy, J. concurring.
18 Hubbard v. United States, 514 U.S. 695, 712–714 (1995); see California v. Federal Energy Regulatory Commission, 495 U.S. 490, 499 (1990); Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 202 (1991).
19 Payne v. Tennessee, 501 U.S. 808, 828 (1991). See Quill Corporation v. North Dakotah, 504 U.S. 298, 317 (1992); State Oil Company v. Kahn, 522 U.S. 3, 14 (1997); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403–04 (1970); Hohn v. United States, 524 U.S. 236, 251 (1997); Monelli v. Department of Social Services of the City of New York, 436 U.S. 658, 695 (1978); Laird v. Nelms, 406 U.S. 797, 802 (1972); see also Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998).
20 Sir William Blackstone, Commentaries of the Laws of England, 1765–1769.
21 See In re Barakat, 173 B.R. 672, 675–76 (Bankr. C.D. Cal. 1994).
22 Id. at 676.
23 Northern Pipeline Construction Co., v. Marathon Pipe Line Company, 458 U.S. 50, 64 (1982).
24 Gower v. Farmers Home Administration, 899 F.2d 1136, 1139–40 (11th Cir. 1990); 28 U.S.C. §451; see Internal Revenue Service v. Brickell Investment Corp., 922 F.2d 696, 699 (11th Cir. 1991).
25 Each district court shall consist of the district judge or judges for the district in regular active service. 28 U.S.C. §132(b). The exclusion of the bankruptcy judge from this enabling statute further depicts the material differences between the two courts and enhances the premise that bankruptcy courts do not sit in pari materia with district courts, which are superior courts in the federal hierarchy.
26 See In re Mayer, 81 B.R. 669, 675 (Bankr. M.D. Fla. 1988).
27 28 U.S.C. §§151, 157.
28 28 U.S.C. §§157(d).
29 Northern Pipeline Construction Co. v. Marathon Pipe Line Company, 458 U.S. 50, 59 (1982).
30 Id. at 60.
31 Id. at 61.
32 Celotex Corporation v. Edwards, 514 U.S. 300, 307 (1995).
33 In re Presidential Financial Corp., 55 B.R. 746, 751 (Bankr. N.D. Ga. 1985).
34 Under the law of this circuit, published opinions are binding precedent. F.R.A.P. 36, 11th Cir. R. 36-3, I.O.P. 2. See Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). Conversely, unpublished opinions are not binding precedent. In re Vogue, 92 B.R. 717, 725 (Bankr. E.D. Mich. 1998).
35 In re Phipps, 217 B.R. at 431.
36 United States v. Whiting Pools, Inc., 462 U.S. 198 (1983).
37 Id. at 201.
38 In re Phipps, 217 B.R. at 430–432.
39 In re Reid, 237 B.R. 577, 589 (Bankr. W.D.N.Y. 1999).
40 Id. at 588-89.
41 In re Shunnarah, 268 B.R. 657 (Bankr. M.D. Fla. 2001).
42 In re Fox, 274 B.R. at 910.
43 Health Services Credit Union v.Shunnarah, 273 B.R. 671 (M.D. Fla. 2001).
44 Id. at 597.
45 In re Wright, 144 B.R. 943, 949 (Bankr. S.D. Ga. 1992).
46 The Gaylor court held district court precedent was not binding upon a bankruptcy court, but failed to cite any precedential decisions to reach its conclusion while only citing secondary sources. Exhaustive search shows numerous bankruptcy courts rendering such decisions, while at no time citing binding authority to reach the conclusion they are not bound by published district court decisions. See, e.g., In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson, & Casey, 160 B.R. 882, 898 (Bankr. S.D.N.Y. 1993); In re Shattac Cable Corp., 138 B.R. 557, 567 (Bankr. N.D. Ill. 1992), citing, in relevant part, In re Gaylor, 123 B.R. 236, 241–43 (Bankr. E.D. Mich. 1991); In re Goode, 131 B.R. 34, 37 n. 6 (Bankr. N.D. Ill. 1991); In re Argo Communications, 134 B.R. 776, 786 n.9 (Bankr. S.D.N.Y. 1991).
47 See Canfield v. Orso, 214 F.3d 637, 641 n.5 (5th Cir. 2000) (stating a bankruptcy court is not empowered to re-think and overturn precedent on its own).
48 Green Tree Acceptance, Inc. v. Calvert, 907 F.2d 1069, 1071 (11th Cir. 1990). Though trial courts, such as U.S. district courts, are not primarily responsible for maintaining consistency of legal decision within a district or circuit, U.S. district courts possess trial and appellate authority and, therefore, at least share in this responsibility.
49 See In re Arway, 227 B.R. at 219 n.3.
51 U.S. Const. art. I, §8.
52 Supra notes 53–55.
53 See In re Abernathy, 150 B.R. 688, 693 n.7 (Bankr. N.D. Ill. 1993); In re Abernathy, 150 B.R. at 694 n.8; In re Barkley 3A Investigators, Ltd., 175 B.R. 755, 758 (Bankr. N.D. Ill. 1995); In re Growth Development Corp., 168 B.R. 1009, 1016 n.5 (Bankr. N.D. Ga. 1994); In re Morningstar Enterprises, Inc., 128 B.R. 102, 106 n.1 (Bankr. E.D. Pa. 1991); In re California Gardens Apartments Ltd., 130 B.R. 509, 514 (Bankr. S.D. Ohio 1991); In re Goode, 131 B.R. 835, 840 n.2 (Bankr. N.D. Ill. 1991); In re Davis, 34 B.R. 34, 37 n.6 (Bankr. W.D. Okla. 1991); In re Johnson, 140 B.R. 850, 856 (Bankr. E.D. Pa. 1992); In re Madison Avenue L.P., 213 B.R. 888, 890 n.2 (Bankr. S.D.N.Y. 1997); City of Olathe v. KAR Dev. Assoc., L.P., 180 B.R. 629, 640 (D.C. Kansas 1995); In re Hernandez, LEXIS 760 (N.D. Cal. 1994); In re Mendez, 255 B.R. 143, 147 n.1 (Bankr. D.N.J. 2000); In re Argo Communications Corp., 134 B.R. 776, 786 n.9 (Bankr. S.D.N.Y. 1991); In re McNichols, 255 B.R. 857, 868–69 (Bankr. N.D. Ill. 2000); In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, 160 B.R. 882, 898 (Bankr. S.D.N.Y. 1993); In re Rheuban, 128 B.R. 551, 554–55 (Bankr. C.D. Cal. 1991); In re Barakat, 173 B.R. 672, 678 (Bankr. C.D. Cal. 1994); In re Shunnarah, 268 B.R. 657, 660 (Bankr. M.D. Fla. 2001), rev’d Health Services Credit Union v. Shunnarah, 273 B.R. 671, 672 (M.D. Fla. 2001); In re Baker, 264 B.R. 759, 762 (Bankr. M.D. Fla. 2001), rev’d Health Services Credit Union v. Baker, Case No. 3:01-cv-989-J-21 (M.D. Fla. 2002); In re Maurer, 271 B.R. 207, 211 n.13 (Bankr. M.D. Fla. 2001).
54 See In re Jamesway Corp., 235 B.R. 329, 337 n.1 (Bankr. S.D.N.Y. 1999); In re Eiland, 173 B.R. 370, 378 (Bankr. N.D. Ill. 1994); In re Volpert, 177 B.R. 81, 85 (Bankr. N.D. Ill. 1995); In re Windsor Communications Group, Inc., 67 B.R. 692, 698–99 (Bankr. E.D. Pa. 1986).
55 In re Gaylor, 123 B.R. 236, 240–42 (Bankr. E.D. Mich. 1991); see In re Raphael, 230 B.R. 657, 664–65 (Bankr. D.N.J. 1999); In re Globe Illumination Co., 149 B.R. 614, 619 (Bankr. C.D. Cal. 1993).
56 But see Northern Pipeline Construction Co. v. Marathon Pipe Line Company, 458 U.S. 50 (1982).
57 Webster’s Third New International Dictionary 2500 (1993).
58 See Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977); Farley v. Farley, 481 F.2d 1009, 1012 (3d Cir. 1973).
59 Threadgill, 928 F.2d at 1371 n.7.
60 In re Dembrosky, 235 B.R. 245, 248 n.4 (Bankr. W.D.N.Y. 1999).
61 See, e.g., Bell-Tel Federal Credit Union v. Kalter, 257 B.R. 93 (M.D. Fla. 2000).
62 In re Baker, 264 B.R. 759, 763 (Bankr. M.D. Fla. 2001).
63 Buna v. Pacific Far East Line, Inc., 441 F. Supp. 1360, 1365 (N.D. Cal. 1977).
64 Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 1991).
65 28 U.S.C. §§81 et seq.
66 For example, Florida district court judges are designated District Court Judge for the Northern, Middle or Southern district of Florida.
67 28 U.S.C. §89. For example, Florida is divided into three judicial districts known as the Northern, Middle, and Southern district of Florida. The Northern District comprises certain specified counties and is held at Pensacola, Panama City, Tallahassee, and Gainesville. The Middle District comprises certain specified counties and is held at Jacksonville, Orlando, Tampa, and Fort Myers. The Southern District comprises certain specified counties and is held at Fort Pierce, West Palm Beach, Fort Lauderdale, Miami, and Key West.
68 See, e.g., In re Shattuc Cable Corp., 138 B.R. 557, 565–67 (Bankr. N.D. Ill. 1992); In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, 160 B.R. 882, 898 (Bankr. S.D.N.Y. 1993); In re Baker, 264 B.R. 759, 762 (Bankr. M.D. Fla. 2001), rev’d Health Services Credit Union v. Baker, Case No. 3:01-cv-989-J-21 (M.D. Fla. 2002); In re Shunnarah, 268 B.R. 657, 660 (Bankr. M.D. Fla. 2001), rev’d Health Services Credit Union v. Shunnarah, 273 B.R. 671, 672 (M.D. Fla. 2001).
69 Of the 59 decisions identified (55 rendered by bankruptcy courts), 31 are contra whereas 28 courts have found the bankruptcy court bound by published district court decisions.
70 This article is not intended to address Bankruptcy Appellate Panels (BAP) and the precedential force, if any, of decisions rendered by BAP, as presently, the judicial council of this circuit has not established a BAP. F.R.A.P. 11th Cir. R. 6—I.O.P.
H. Michael Muñiz is a commercial litigation associate in the Firm of Sachs, Sax & Klein, P.A., Boca Raton, where he concentrates his practice in commercial and civil litigation, including appeals, and is experienced in bankruptcy proceedings and creditors’ rights. He received his undergraduate degree from SUNY at Buffalo, became a Florida-licensed CPA, and thereafter obtained his J.D. from the Shepard Broad Law School at Nova Southeastern University.