Opinion
BAP No. HI-05-1417, Bk. No. 04-03063.
October 26, 2005
Before: MONTALI, SMITH and PAPPAS, Bankruptcy Judges.
ORDER DENYING MOTION FOR LEAVE TO APPEAL
On October 14, 2005, the bankruptcy court entered an order setting a hearing and briefing schedule for certain motions under 11 U.S.C. § 1113. Appellant filed a timely notice of appeal on October 21, 2005.
Appellant also filed an emergency motion for leave to appeal on October 21, 2005. The Panel has received and considered the motion filed by Appellant.
A bankruptcy court order is final under the flexible finality standard if it: "(1) `finally determines the discrete issue to which it is addressed,' and (2) `resolves and seriously affects substantive rights.'" In re P.R.T.C., Inc., 177 F.3d 774, 779-80 (9th Cir. 1999) (quoting In re Frontier Properties, 979 F.2d 1358, 1363 (9th Cir. 1992)).
The order on appeal is interlocutory since it is not a final disposition as to the rejection of certain collective bargaining agreements under 11 U.S.C. § 1113. Appeal of an interlocutory order requires leave of the panel. See 11 U.S.C. § 158(a)(3).
The BAP routinely applies the factors enunciated in 28 U.S.C. § 1292(b) in deciding whether to grant leave to appeal interlocutory bankruptcy court orders. See e.g. In re Travers, 202 B.R. 624, 626 (9th Cir. BAP 1996) (stating that "leave is appropriate if the order involves [1] a controlling question of law [2] where there is substantial ground for difference of opinion and [3] when the appeal is in the best interests of judicial economy because an immediate appeal may materially advance the ultimate termination of the litigation.") Appellant has not established that leave should be granted.
Even if leave to appeal was granted by the Panel, granting leave to appeal would not stay the order on appeal. Appellant has not requested a stay pending appeal, and it is not clear that a stay pending appeal would be warranted under applicable authority. See In re Wymer, 5 B.R. 802, 806 (9th Cir. BAP 1980).
Accordingly, the motion for leave to appeal is ORDERED DENIED.