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Bankruptcy Court Preliminary Injunction Held Not Appealable
A bankruptcy court's preliminary injunction was "not a final and immediately appealable order," held the U.S. District Court for the District of Delaware on Dec. 10, 2019. In re Alcor Energy, LLC, 2019 WL 6716420, 4 (D. Del. Dec. 10, 2019). The court declined to "exercise [its] discretion" under 28 U.S.C. §158(a)(3) to hear the interlocutory appeal. Id., citing 16 Wright & Miller, Federal Practice and Procedure, §3926.1 (3d ed. 2017) ("There is no provision for appeal as of right from an injunction order of a bankruptcy judge to the district court.").
A bankruptcy court's injunction is appealable, however, according to the decisions that the Alcor court never mentioned. See, e.g., In re GI Holdings, Inc., 122 Fed. Appx. 554-55 n.2 (3d Cir. 2004) ("Jurisdiction lies for this appeal pursuant to 28 U.S.C. §1292(a)(1) because the [district court] refused … to modify or dissolve a [bankruptcy court] preliminary injunction."); Reliance Acceptance Corp. v. Levin (In re Reliance Acceptance Group), 235 B.R. 548, 553 (D. Del. 1999) ("the court looks to sections 158(c)(2) and 1292(a) to find the defendants have a right to appeal to this court [from] the Bankruptcy Court's preliminary injunction order."). The Alcor court also missed the latest update to the Wright & Miller treatise that cites In re World Imports Ltd., 820 F.3d 576, 582 n.5 (3d Cir. 2016) with the following: "Injunctions as final. An injunction from the district court can be treated as final from the district court as well as on appeal to the district court." In the recent Third Circuit case, reported Wright & Miller, "the bankruptcy court issued an injunction …. The district court affirmed. The [Third Circuit] noted that the district court had jurisdiction of the appeal from the bankruptcy court both under [28 U.S.C. §]158(a) and under §1292(a) …" 16 Wright & Miller, supra, §3926.1, n.28 (2018 Supp.). Unfortunately, the appellants in Alcor "provided no argument in support of" the district court's appellate jurisdiction and thus "waived any argument that the appeal" was appropriate. Alcor, 2019 WL 6716420 at 4.
Relevant Statutes
Appeals from the bankruptcy court to the district court are governed by three provisions of the Judiciary Code. §§158(a); 158(c)(2); and §1292(a)(1). 28 U.S.C. Section 158(a) reads in relevant part as follows:
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