In re: Lawrence James Wohleber, Jr. v. Jennifer Skurko; Leslie A. Gentile

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0661n.06
Nos. 19-3223/3225
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: LAWRENCE JAMES WOHLEBER, JR., )
)
Debtor. )
_________________________________________ )
)
LAWRENCE JAMES WOHLEBER, JR.,
Plaintiff-Appellee,
v.
JENNIFER SKURKO; LESLIE A. GENTILE,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES
BANKRUPTCY APPELLATE
PANEL FOR THE SIXTH
CIRCUIT
BEFORE: BATCHELDER, WHITE, and MURPHY, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Jennifer Skurko and Leslie Gentile appeal from
an order of the Bankruptcy Appellate Panel (“BAP”) reversing the bankruptcy court, vacating its
decision that there was no violation of an automatic stay, and remanding for further proceedings.
Because the BAP’s order was not final, we dismiss the appeals for lack of jurisdiction.
I.
Plaintiff Lawrence Wohleber and Defendant Jennifer Skurko have been involved in a
protracted domestic relations proceeding in the Court of Common Pleas of Lorain County, Ohio.
That court granted their divorce and entered a property settlement in Skurko’s favor in 2006. After
several appeals, the court ordered Wohleber to pay Skurko $36,459.33 within 21 days (“property

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settlement”). For the next nine months, the parties litigated and appealed several issues concerning
the property settlement. On July 2, 2013, Defendant Leslie Gentile, Skurko’s attorney, sought a
show-cause order because Wohleber had failed to pay the property settlement. On July 22, 2013,
Judge Debra Boros found Wohleber in contempt. The contempt order stated that Wohleber could
purge the contempt by paying the property settlement in full by October 1, 2013, but set a
sentencing hearing for October 8 in case Wohleber failed to do so.
Wohleber did not pay the property settlement by October 1, 2013. On October 4, 2013—
four days before the scheduled sentencing hearing—Wohleber filed a Chapter 13 bankruptcy
petition in the Northern District of Ohio. That same day, Wohleber’s bankruptcy attorney filed a
suggestion of bankruptcy in the state court. On October 8, 2013, Judge Boros met with counsel in
chambers before the sentencing hearing to provide both “parties the opportunity to explain why
the sentencing hearing was stayed by the bankruptcy petition, despite her research concluding
otherwise.” R. 155, BAP Op. at 5. During the subsequent contempt hearing, Skurko and her
counsel were silent except to confirm on the record that Wohleber failed to pay the property
settlement. Judge Boros sentenced Wohleber to 30 days in the Lorain County Jail. Wohleber’s
jail sentence included “a provision that he be released upon payment of the property settlement
which is the basis for the contempt.” Joint Stipulation, R. 122, ¶ 6. Wohleber remained
incarcerated for ten days before the state court, “by agreement of the parties,” held the remainder
of Wohleber’s sentence in abeyance pending resolution of Wohleber’s bankruptcy proceeding. Id.
at 26. Wohleber later dismissed his bankruptcy petition, at which time Gentile filed a motion on
Skurko’s behalf to reimpose the contempt sentence. A day before a hearing on Skurko’s motion,
Wohleber filed a second bankruptcy petition. This time, the state court stayed all proceedings
pending resolution of Wohleber’s bankruptcy case.

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Two years into this second bankruptcy case, Wohleber initiated this adversary proceeding
against Skurko, Gentile, and Judge Boros alleging that their actions violated the automatic stay,
11 U.S.C. § 362, and seeking monetary damages. All three defendants moved to dismiss the
adversary proceeding. The bankruptcy court dismissed Judge Boros from the case on immunity
grounds but denied Gentile and Skurko’s motions. The bankruptcy court later denied summary
judgment motions brought by all parties and conducted a trial on Wohleber’s adversary
proceeding. At the conclusion of Wohleber’s case-in-chief, Gentile moved for judgment on partial
findings under Rule 52(c).1 The bankruptcy court granted the motion, concluding that Wohleber
failed to demonstrate a violation of the automatic stay. Wohleber appealed.
On appeal, the BAP held that the “sentencing hearing was a continuation of a judicial
proceeding against the debtor to recover a pre-petition debt of the debtor” and therefore a violation
of the automatic stay. BAP Op. at 13. It also concluded that Skurko and Gentile had a duty to
take action to prevent the sentencing hearing and Wohleber’s confinement from occurring.
Because the bankruptcy court granted the motion for judgment on partial findings before Gentile
and Skurko had a chance to present their cases, the BAP remanded to the bankruptcy court for the
“completion of the liability portion of the trial,” allowing Gentile and Skurko to present evidence
on whether they took any affirmative steps to prevent the sentencing hearing or Wohleber’s
confinement from occurring. The BAP’s decision directed that if the bankruptcy court determines
on remand that Gentile and Skurko failed to meet their duty to prevent the stay violation, it should
also determine damages under 11 U.S.C. § 362(k). Gentile and Skurko appeal from that order.
1 Federal Rule of Bankruptcy Procedure 7052 makes Rule 52 applicable to adversary proceedings.

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II.
In their initial briefs, Gentile and Skurko asserted that we have jurisdiction to review the
BAP’s order under 28 U.S.C. § 158(d)(1), which gives courts of appeals jurisdiction of “appeals
from all final decisions, judgments, orders, and decrees” entered by a BAP. Following oral
argument, we directed the parties to brief whether we have jurisdiction under this section where
the order being appealed remanded to the bankruptcy court for further proceedings. We directed
the parties to address certain cases holding that such an order does not qualify as final under 28
U.S.C. § 158(d)(1). See, e.g., In re Cyberco Holdings, Inc., 734 F.3d 432, 436 (6th Cir. 2013); see
also Settembre v. Fid. & Guar. Life Ins. Co., 552 F.3d 438, 441 (6th Cir. 2009). In their
supplemental briefs, Gentile and Skurko make a number of new arguments in support of our
jurisdiction, including that these cases are distinguishable; that finality operates differently in the
bankruptcy context, rendering the BAP’s decision “final” for purposes of § 158(d); that declining
jurisdiction would insulate the BAP’s decision from appellate review; and that we may review the
BAP’s order under the collateral-order doctrine. We are not persuaded.
First, the BAP’s order is not final. Our cases hold that “a decision by the [BAP] on appeal
remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not
final, and so is not appealable to this court, unless the further proceedings contemplated are of a
purely ministerial character.” Settembre, 552 F.3d at 441; see In re Cyberco Holdings, 734 F.3d
at 436. The BAP’s order remanded the case to the bankruptcy court for the “completion of the
liability phase” of the adversary proceeding and, if necessary, calculation of damages. BAP Op.
at 27. Such orders contemplate proceedings that are not purely ministerial in nature. In re Swegan,
555 F.3d 510, 512 (6th Cir. 2009) (proceedings involving additional fact-finding by bankruptcy
court were not ministerial); In re Bradley, 588 F. App’x 480, 482-83 (6th Cir. 2014) (BAP order

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remanding for a determination of damages contemplates further proceedings that are not purely
ministerial).
Gentile and Skurko argue that these cases are distinguishable because they all concerned
adversary proceedings involving the “administration of a bankruptcy case.” Skurko Br. at 3. This
is true but irrelevant. Our jurisdiction derives from statute, and the statute that Gentile and Skurko
rely on, 28 U.S.C. § 158(d)(1), requires a final decision—regardless of the underlying subject
matter of the adversary proceeding. Although it is true that “[t]his finality requirement is
considered in a more pragmatic and less technical way in bankruptcy cases than in other
situations,” In re Dow Corning Corp., 86 F.3d 482, 488 (6th Cir. 1996) (citation omitted), this
does not alter our conclusion that the BAP’s order is not final. The relaxed finality rule derives
from the understanding that bankruptcy cases are “aggregation[s] of individual disputes, many of
which could be entire cases on their own.” In re Jackson Masonry, LLC, 906 F.3d 494, 498 (6th
Cir. 2018). As a result, orders finally resolving discrete disputes in a bankruptcy case—such as
adversary proceedings—may qualify as immediately appealable final orders even though the
overall bankruptcy case is ongoing. Id. However, the BAP’s order is not such an order, and
because it did not conclusively resolve Wohleber’s adversary proceeding, it is not final.
Gentile and Skurko also contend that declining to review the BAP’s order would insulate
its rulings from appellate review, see, e.g., Skurko Br. at 2 (“The BAP’s ruling . . . becomes the
law of the case binding upon the Bankruptcy Court and never subject to appellate review”), but
fail to provide support for this assertion. They are mistaken. The law-of-the-case doctrine does
not prevent a superior court from reviewing the decisions of an inferior court. See, e.g., In re
Raynor, 617 F.3d 1065, 1068 (8th Cir. 2010) (“As the reviewing court, we are bound by neither
the [bankruptcy] court nor the BAP decision.”). On remand, the bankruptcy court will be required

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to conduct the remainder of the liability portion of the adversary proceeding—and if it finds
liability, assess damages—setting forth its findings of fact and conclusions of law in accordance
with Rule 52. To be sure, some of the bankruptcy court’s findings of fact and conclusions of law
will be governed by the BAP’s order; but, this does not prevent Gentile and Skurko from
preserving their disagreement with those rulings for appellate review, and does not mean that we
can never review whether those decisions are correct. Even if a subsequent BAP decides that it is
bound by the prior BAP’s order, we are not, as “[w]e independently review the decision of the
bankruptcy court that comes to us by way of appeal from a Bankruptcy Appellate Panel.” Nardei
v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir. 2003).
Further, to the extent Gentile and Skurko argue that the law of the case will prevent us from
ever deciding these issues if we dismiss their appeals, they are incorrect. “[T]he law of the case is
. . . based upon sound policy that when an issue is once litigated and decided, that should be the
end of the matter.” United States v. United States Smelting Refining & Mining Co., 339 U.S. 186,
198 (1950). But, “[w]hen a case is dismissed . . . for lack of subject matter jurisdiction, nothing
has been ‘litigated and decided,’” because such a dismissal is not an adjudication on the merits.
Holloway v. Brush, 220 F.3d 767, 778 (6th Cir. 2000) (en banc). The law-of-the-case doctrine will
not preclude us from deciding these issues in a future appeal.
Finally, Gentile argues that we may review the BAP’s order under the collateral-order
doctrine, which permits appeal from a “small class” of “decisions that, though short of final
judgment, are immediately appealable because they ‘finally determine claims of right separable
from, and collateral to, rights asserted in the action.’” Behrens v. Pelletier, 516 U.S. 299, 305
(1996) (quoting Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 546 (1949)). Three
conditions must be satisfied before the collateral-order doctrine applies. The order must

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“[1] conclusively determine the disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final
judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). The collateral-order doctrine does not
permit our review here for several reasons. First, the BAP’s order did not finally determine any
claim. In re Blasingame, 651 F. App’x 386, 389 (6th Cir. 2016). Second, the BAP’s order that
Gentile and Skurko had a duty to take action to prevent Wohleber’s sentencing hearing is not
separate from—but rather central to—resolving Wohleber’s adversary proceeding. Finally, as
explained above, the BAP’s rulings are not effectively unreviewable on appeal from a final
decision. As Gentile herself recognizes in her brief, “[i]n the event of an adverse judgment, there
will be another appeal to the BAP which will no doubt feel compelled to apply the erroneous
determination made below, resulting in another appeal to this Court.” Gentile Br. at 8. This is no
doubt true, but that subsequent appeal will be the one properly before this Court. The collateral-
order doctrine does not permit review of the BAP’s decision at this point.2
2 Our concurring colleague argues that we should abandon Settembre and adopt a new rule whereby
we would have jurisdiction over appeals in which either the bankruptcy court’s judgment or the
intermediate (BAP or district court) judgment satisfies the Bullard finality test. We see two issues
with this proposal. First, it is not clear that such a rule would be consistent with 28 U.S.C. §
158(d)(1), which gives courts of appeals jurisdiction over “all final decisions, judgments, orders,
and decrees” entered by a BAP or district court—not the bankruptcy court. See In re Brown, 248
F.3d 484, 487 (6th Cir. 2001) (Holding that under § 158(d) “we are to inquire into the finality of
[the district court’s and BAP’s] decisions; not the finality of the bankruptcy court’s decision.”).
Second, the new rule would be largely redundant. Under 28 U.S.C. § 158(d)(2)(A)(iii), enacted in
2005, a bankruptcy court (or district court or BAP) may certify, a party may request the court to
certify, or the parties together may certify, that this court should hear an immediate appeal from a
non-final ruling of the bankruptcy court when “an immediate appeal from the judgment, order, or
decree may materially advance the progress of the case [.]” See Bullard, 135 S. Ct. at 1696; In re
Lindsey, 726 F.3d 857, 858 (6th Cir. 2013). However, the parties did not seek such certification,
and thus we lack jurisdiction to hear this appeal.

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III.
For the foregoing reasons, we DISMISS Gentile and Skurko’s appeals for lack of
jurisdiction.

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ALICE M. BATCHELDER, Circuit Judge, concurring in the judgment. The lead
opinion dismisses this appeal based on a court-made limit on our jurisdiction, effectively affirming
the Bankruptcy Appellate Panel (BAP) and returning the case to the bankruptcy court for extensive
further proceedings. Because this is a proper application of Sixth Circuit precedent, I concur in
the judgment, but I disagree with this precedent and the result it causes here.
In my opinion, the bankruptcy court was correct in both its determination that the
defendants owed no duty to the plaintiff-debtor and its decision to end the action on that basis, and
the BAP was clearly wrong. If I am right, then the forthcoming proceedings are a waste of
everyone’s time and resources. There will be an evidentiary hearing, as the BAP ordered, and a
legal ruling in the bankruptcy court, another intermediate appeal (to the BAP or the district court)
and intermediate-appellate ruling, and the case will return here on appeal, whereupon a panel will
hold that the defendants did not owe the plaintiff-debtor any duty and will end the action on that
basis, thus ignoring—and rendering worthless—all of those additional proceedings.
While the attorneys might appreciate the extra billings, I doubt that the bankruptcy court
or the parties themselves will be so appreciative. And, even if the majority here would hold that
the defendants do somehow owe this supposed duty to the plaintiff-debtor, then establishing that
holding as the law of the case would likely expedite those proceedings or maybe encourage
settlement negotiations. Then again, if I am right and the defendants are sitting on a trump card,
they would have no motivation to negotiate or to exert themselves defending this action; they just
need a final decision so they can return here for a correct legal ruling.
Because our self-imposed limit on our jurisdiction is counterproductive in this case, and
because it creates some friction with our ordinary approach to deciding bankruptcy appeals, it
would appear to warrant reconsideration or modification. And, to put it mildly, “the Supreme

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Court has expressed disfavor for prudential doctrines that abdicate jurisdiction and has emphasized
the duty federal courts have to exercise jurisdiction.” In re City of Detroit, 838 F.3d 792, 800 (6th
Cir. 2016). Judge Moore was more emphatic in her dissent in that case:
The current trend at the Supreme Court is toward a greater recognition of our
virtually unflagging obligation to exercise the jurisdiction given us. Where once
we relied on prudential doctrines that used jurisdictional jargon to justify deciding
not to decide a case, the Supreme Court is now skeptical of such self-imposed
straitjackets. At bottom, this is a recognition that it is rarely our job as judges to
decline to exercise our judicial power in a case that is otherwise within our
jurisdiction. Just as a court cannot apply its independent policy judgment to
recognize a cause of action that Congress has denied, it cannot limit a cause of
action that Congress has created merely because prudence dictates. Deciding not
to decide can thus be a form of judicial overreach, not restraint.
Id. at 805-06 (Moore, J., dissenting) (quotation marks, editorial marks, and citations omitted).
With that in mind, I would argue that the rule should be that we have appellate jurisdiction
if either the bankruptcy court’s judgment or the intermediate appellate judgment is final.
I.
Back in 2004, Lawrence Wohleber and Jennifer Skurko filed for divorce in the state
domestic relations court (“family court”), which granted the divorce and ordered Wohleber to pay
a property settlement. But Wohleber never paid and the dispute went on and on. In July 2013,
Skurko and her lawyer, Leslie Gentile, moved the family court to compel Wohleber to pay.
Eventually, the family court held Wohleber in contempt, but allowed that he could purge by paying
$36,459 to Skurko and $10,510 to Gentile by October 1, 2013. Wohleber did not pay.
Instead, on October 4, Wohleber filed a petition for Chapter 13 bankruptcy and his lawyer
notified the family court about it that same day. Nonetheless, the family court ordered Wohleber
to appear on October 8 for “sentencing” on its contempt ruling, which was technically just between
the family court and Wohleber; Gentile and Skurko did not even need to be there. But they were

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there, and the family court judge encouraged the parties to try once more to settle and said she
would accept any agreement they could reach. They reached no agreement.
The family court “sentenced” Wohleber to 30 days in jail, unless he paid the property
settlement. It bears mention that, in doing so, the family court judge said, on the record, that she
had already determined for herself that the bankruptcy automatic stay did not apply, but offered
Wohleber’s attorney a chance to produce case law to show that it did—he declined to do so, instead
conceding that it did not apply. Gentile and Skurko played no meaningful role in this. Wohleber
remained in jail until October 17, when the family court released him and held the jail term in
abeyance until his bankruptcy was done. It is unclear whether Wohleber ever paid.
Three years later, Wohleber filed this action in his bankruptcy case, claiming that Skurko,
Gentile, and the family court judge violated the automatic stay by imposing the contempt sanction.
The bankruptcy court granted absolute immunity to the family court judge and dismissed her but
held a bench trial on the claims against Gentile and Skurko. Ultimately, the bankruptcy court ruled
that there was no violation of the automatic stay and that Gentile and Skurko had no duty to stop
the family court judge from imposing the contempt sanction; it granted judgment to Gentile and
Skurko. That was a final and appealable judgment.
Wohleber appealed the judgment to the BAP, which reversed, finding that, because the
contempt ruling was intended to compel Wohleber to pay his financial obligation (rather than
uphold the court’s integrity), it was civil contempt, not criminal, so it violated the automatic stay.
That ruling was correct. But the BAP then held that Gentile and Skurko had an affirmative duty
to prevent the family court (and, presumably, the bankruptcy court) from committing that
violation, so they were liable in damages. The BAP remanded for further proceedings to quantify
the damages. In re Wohleber, 596 B.R. 554 (B.A.P. 6th Cir. 2019).

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Regardless of whether the bankruptcy court was correct in holding that the bankruptcy stay
did not apply to the family court’s contempt action against Wohleber—and I agree that it was
not—that was nonetheless a legal issue or dispute, open to argument by the parties and decision
by the court. Moreover, given that the family court, and later the bankruptcy court, agreed that the
bankruptcy stay did not apply, that was a “winning” argument in both of those forums. Incredibly,
the BAP held that Skurko and her attorney had a “duty” to abandon that argument (regardless of
its merit, apparently), to insist instead that the bankruptcy stay did apply (even though Wohleber’s
attorney agreed that it did not apply), and to persuade the family court (and presumably the
bankruptcy court) that the stay applied. When an attorney abandons a client’s winning argument
and instead argues against the client’s interests, that attorney is risking a charge of malpractice.
Hence, the BAP in essence held that Skurko’s attorney, Gentile, had a “duty” to commit legal
malpractice (and the client, Skurko, had a “duty” to order Gentile to do so).
Gentile and Skurko appealed here, claiming, among other things, that, as adversarial parties
to a legitimate legal dispute in the family court, they had neither the duty nor the ability to prevent
the family court from imposing the sanction on Wohleber. It was for the family court to decide
whether the automatic stay applied to the contempt action; their role in an adversarial system was
to argue that it did not. As it happened, however, their participation was unnecessary because
Wohleber’s attorney conceded that the stay did not apply, and the family court announced that it
had already determined that the stay did not apply. Therefore, they conclude, the BAP erred by
imposing a “duty” to abandon their adversarial role in the proceedings or to abandon any legal
arguments about why the stay might not apply in their circumstances.
After hearing oral argument in this appeal, we requested supplemental briefing on a Sixth
Circuit jurisdictional doctrine under which an intermediate-appellate (district court or BAP)

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decision that remands the bankruptcy court’s ruling for further proceedings is not final, and
therefore not appealable. The lead opinion applies the doctrine here to dismiss this appeal.
II.
In the Sixth Circuit, “a decision by the district court [or BAP] on [intermediate] appeal
remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not
final, and so is not appealable to this court, unless the further proceedings contemplated are of a
purely ministerial character.” Settembre v. Fid. & Guar. Life Ins. Co., 552 F.3d 438, 441 (6th Cir.
2009). In adopting this approach from the Seventh Circuit, and aligning with the majority of
circuits, we stated that this approach would be consistent with the concept of “finality of district
court decisions in general,” asserting that “‘final’ should not mean one thing in [bankruptcy] and
another in [non-bankruptcy],” id. (quotation marks and citation omitted), and that it would reduce
litigation as compared with the minority approach or our then-existing approach, id.
Since adopting this approach in 2009, we have applied it a grand total of seven times. See
In re Bradley, 588 F. App’x 480, 481-82 (6th Cir. 2014); In re Decker Coll., Inc., 578 F. App’x
579, 580-81 (6th Cir. 2014); In re Cyberco Holdings, Inc., 734 F.3d 432, 435-36 (6th Cir. 2013);
In re Bunn, 578 F.3d 487, 488 (6th Cir. 2009); In re Gruseck & Son, Inc., 558 F.3d 482, 484 (6th
Cir. 2009); In re Swegan, 555 F.3d 510 (6th Cir. 2009); In re Ayoub, No. 17-2272, 2017 WL
7000266, at *1 (6th Cir. Dec. 4, 2017) (Order). None of those cases offers any new or additional
basis or support for this approach, and its justification remains based on the theory that “final”
should not mean one thing in bankruptcy and something else in non-bankruptcy.
In Bullard v. Blue Hills Bank, 575 U.S. 496, 135 S. Ct. 1686, 1691 (2015), the Supreme
Court acknowledged that “[t]he rules are different in bankruptcy,” meaning that finality in
bankruptcy is not the same as in “ordinary civil litigation.” A bankruptcy ruling is final and

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appealable when it ends a discrete bankruptcy proceeding, fixes the rights of the parties, and has
significant consequences for them. Id. at 1692; see also In re Jackson Masonry, LLC, 906 F.3d
494, 503 (6th Cir. 2018), aff’d sub nom. Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct.
582 (2020). The Court added an “additional consideration,” explaining that “each climb up the
appellate ladder and slide down the chute can take more than a year. Avoiding such delays and
inefficiencies is precisely the reason for a rule of finality.” Bullard. 135 S. Ct. at 1693.
Turning back to the present case, if we apply the Bullard finality test to the BAP’s reverse-
and-remand order, that order clearly fails the test. It does not end a discrete proceeding or fix the
rights of the parties. Thus interpreted, Bullard is consistent with our Settembre approach.
But if we instead ignore the BAP’s intermediate-appellate ruling and consider only the
bankruptcy court’s judgment, that judgment would pass the Bullard test. The bankruptcy court’s
judgment, which was final under any standard, ended a discrete bankruptcy proceeding, fixed the
rights of the parties, and had significant consequences for them. See Bullard, 140 S. Ct. at 1692.
Also, affirming that judgment would avoid the impending “delays and inefficiencies” from the
parties’ “slide down the chute” and “climb [back] up the appellate ladder.” See id. at 1693.
But how could a Sixth Circuit panel openly ignore the BAP’s intermediate-appellate
decision as if it did not exist, and instead consider the bankruptcy court’s judgment directly? It
would certainly help to have some authority or rationale for such an unusual suggestion.
III.
As it turns out, when ruling on the merits of a bankruptcy appeal, Sixth Circuit panels
review the bankruptcy court’s ruling directly; we do not review, or give any deference to, the
intermediate decision by the district court or BAP. In re Charfoos, 979 F.2d 390, 392 (6th Cir.
1992) (“We evaluate the bankruptcy court decision directly, without being bound by the district

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court’s determinations.”); In re Millers Cove Energy Co., Inc., 62 F.3d 155, 158 (6th Cir. 1995)
(“The court accords discretion in reviewing only the original bankruptcy court findings, not those
included in the decision rendered by the district court, since this court is in as good a position to
review the bankruptcy court’s decision as is the district court.” (quotation marks, editorial marks,
and citations omitted)); In re Dickson, 655 F.3d 585, 589–90 (6th Cir. 2011) (“We review the
decision of the bankruptcy court directly, giving no deference to the decision of the BAP.”); In re
Connolly N. Am., LLC, 802 F.3d 810, 814 (6th Cir. 2015) (“When we consider an appeal that
originated in bankruptcy court, our review process is slightly different from our normal standard
of review. We directly review the bankruptcy court’s decision rather than the district court’s
review of the bankruptcy court’s decision, recognizing that we are in as good a position to review
the bankruptcy court’s decision as is the district court.” (quotation marks and citations omitted));
In re Greektown Holdings, LLC, 917 F.3d 451, 455–56 (6th Cir. 2019) (“On appeal from a district
court’s review of a bankruptcy court’s order, we review the bankruptcy court’s order directly rather
than the intermediate decision of the district court.”).
So, on the merits, the BAP’s or district court’s intermediate decision is effectively
meaningless, a nullity; Sixth Circuit panels ignore it when deciding the appeal. But, under our
Settembre approach to finality, that otherwise meaningless ruling is determinative for deciding
jurisdiction. That is, unless a panel ignores the intermediate decision for that purpose too.
In re M.J. Waterman & Assocs., Inc., 227 F.3d 604, 606-07 (6th Cir. 2000), was a Chapter
11 bankruptcy case in which the bankruptcy court approved the debtor’s reorganization plan (final
judgment), a creditor appealed, and the district court vacated the bankruptcy court’s decision and
remanded. The panel explained its jurisdiction:

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This Court has jurisdiction pursuant to 28 U.S.C. §§ 158 and 1291. We note that
our review process is slightly different from our normal standard of review when
reviewing appeals which originated in the bankruptcy courts. First, we directly
review the bankruptcy court’s decision rather than the district court’s review of the
bankruptcy court’s decision. . . . [T]his Court accords discretion in reviewing only
the original bankruptcy court findings, not those included in the decision rendered
by the district court, since this court is in as good a position to review the
bankruptcy court’s decision as is the district court.
Id. at 607 (quotation marks and citations omitted). The panel affirmed the bankruptcy court on the
merits, effectively reversing the district court. Id. at 612. To be sure, this opinion pre-dated
Settembre, but it expressly considered its appellate jurisdiction and it is published.
In re Schafer, 689 F.3d 601, 604-05 (6th Cir. 2012), was a Chapter 7 bankruptcy in which
the bankruptcy court held a state exemption statute constitutional, the trustee appealed, and the
BAP reversed, holding the statute unconstitutional. The state appealed. The panel did not discuss
its jurisdiction, beginning its analysis with the statement that, “[i]n reviewing cases appealed from
the BAP, we focus our review on the bankruptcy court’s decision,” and then proceeded to the
merits. Id. at 605. On the merits, the panel affirmed the bankruptcy court, effectively reversing
the BAP. Id. at 616. This was published three years after Settembre.
In re Mace, 573 F. App’x 490, 495 (6th Cir. 2014), was a Chapter 13 bankruptcy in which
the bankruptcy court ruled that a creditor’s claim was viable, the debtor appealed, and the BAP
reversed and remanded, holding that the creditor had not proven an enforceable claim. On appeal
here, the panel did not discuss its jurisdiction expressly, beginning its analysis with the statement
that, “[w]hen reviewing a case appealed from the BAP, we independently review the bankruptcy
court decision, giving no deference to the BAP’s opinion,” and then proceeded to the merits. Id.
at 495. On the merits, the panel “reverse[d] the decision of the BAP, affirm[ed] the decision of

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the bankruptcy court, and remand[ed] the case to the bankruptcy court for further proceedings
consistent with this opinion.” Id. at 498 (capital converted to lowercase).
So, we apply Settembre’s jurisdictional limitation infrequently, having applied it only
seven times in eleven years, not to mention inconsistently, given that we sometimes ignore it. It
certainly appears that the parties here overlooked or ignored it; Wohleber did not raise it, we raised
it ourselves. If we had overlooked it and decided this appeal on the merits, we would have
reviewed the bankruptcy court’s decision and—I believe—affirmed it, without consideration of
the BAP’s analysis, ruling, or remand order. That would have ended the action right here.
IV.
We have jurisdiction to review non-final orders that are certified and accepted pursuant to
28 U.S.C. § 158(d)(2), 28 U.S.C. § 1292(b), or Federal Rule of Civil Procedure 54(b). Therefore,
a party may pursue one of these avenues to appeal a non-final ruling from the district court or
BAP. But Skurko and Gentile did not pursue any of these avenues in this case.
An appellant must request this “permissive interlocutory review”; we do not grant it sua
sponte. In re Decker Coll., 578 F. App’x 579, 581-82 (6th Cir. 2014) (quoting In re Lindsey,
726 F.3d 857, 858 (6th Cir. 2013)). So, this permissive interlocutory review is unavailable here.
Ultimately, because our precedent leaves this appeal neither final nor subject to permissive
interlocutory review, the lead opinion correctly dismisses this appeal and I concur in that judgment.
V.
The Settembre jurisdictional limitation is controlling precedent in the Sixth Circuit and the
lead opinion applies it correctly in this case. But because that rule is misguided, I would argue for
a different rule, one that establishes our jurisdiction over appeals in which either the bankruptcy
court’s judgment or the intermediate (BAP or district court) judgment satisfies the Bullard finality

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test. That would comport with Bullard’s principles, expedite the bankruptcy review process, and
align our approach to deciding jurisdiction with our approach to deciding the merits of the appeal.

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