An order denying a motion to recuse is not among the interlocutory orders referred to in 11 U.S.C. § 1121. McCallan v. Hamm, 502 B.R. 245, 247 (M.D. Ala. 2013). Nor does an order denying a motion to recuse fall under the ambit of the bankruptcy court's jurisdiction over core and no-core matters under 28 U.S.C. § 157.
See, e.g., In re Highland Capital Mgmt., L.P., 3:21-CV-0879-K, 2022 WL 394760, at *4 (N.D. Tex. Feb. 9, 2022) (“The Recusal Order was an exercise of the Bankruptcy Judge's discretion, so there is no controlling issue of law presented.”); In re Gonzalez, 8:12-BK-19213-KRM, 2016 WL 1253274, at *5 (M.D. Fla. Mar. 30, 2016) McCallan v. Hamm, 502 B.R. 245, 249 (M.D. Ala. 2013) (denying leave to appeal denial of motion to accuse where the parties did not dispute the applicable legal standards but “the bankruptcy judge's application of the recusal standard to the facts of the particular case”); In re The Ad Hoc Comm. of Tort Victims, No. 04CV08934, 2005 WL 267564, at *4-7 (S.D.N.Y. Feb. 3, 2005) (declining discretionary jurisdiction over bankruptcy judge's denial of motion to recuse on the grounds that the dispute did not concern a doubtful legal principle but was rather “a fact-intensive question that would be more appropriate for resolution after the final judgment”).
; In re Gonzalez, 8:12-BK-19213-KRM, 2016 WL 1253274, at *5 (M.D. Fla. Mar. 30, 2016) McCallan v. Hamm, 502 B.R. 245, 249 (M.D. Ala. 2013) (denying leave to appeal denial of motion to accuse where the parties did not dispute the applicable legal standards but “the bankruptcy judge's application of the recusal standard to the facts of the particular case”); In re The Ad Hoc Comm. of Tort Victims, No. 04CV08934, 2005 WL 267564, at *4-7 (S.D.N.Y. Feb. 3, 2005) (declining discretionary jurisdiction over bankruptcy judge's denial of motion to recuse on the grounds that the dispute did not concern a doubtful legal principle but was rather “a fact-intensive question that would be more appropriate for resolution after the final judgment”).
But "[t]he issue of whether the bankruptcy judge should have recused himself does not involve a controlling question of law as to which there is substantial ground for difference of opinion." McCallan v. Hamm, 502 B.R. 245, 249 (M.D. Ala. 2013). "As was the case in McCallan, the parties in this case do not disagree as to the standard applicable to a bankruptcy judge's recusal determination."
But 28 U.S.C. § 1292(b) governs interlocutory appeals to the court of appeals, and every district court in the Eleventh Circuit uses § 1292(b) to decide whether to grant leave to appeal under § 158(a)(3).See In re United Plastic Recycling, Inc., No. 17-cv-700, 2017 WL 5075251, at *2 (M.D. Ala. Nov. 3, 2017); McCallan v. Hamm, 502 B.R. 245, 247-48 (M.D. Ala. 2013); Gebhardt v. Hardigan, 512 B.R. 385, 388 (S.D. Ga. 2014); B & H Mgmt. v. Dixon, No. 13-cv-141, 2014 WL 29449, at *1 (M.D. Ga. Jan. 3, 2014); In re Prestwood, No. 11-cv-154, 2011 WL 1771051, at *1 (N.D. Fla. May 10, 2011); Smith v. Laddin, 424 B.R. 529, 534 (N.D. Ala. 2010); In re Tate, No. 09-mc-39, 2010 WL 923630, at *3 (S.D. Ala. Mar. 9, 2010); In re Seminole Walls & Ceilings Corp., 388 B.R. 386, 390-91 (M.D. Fla. 2008); Figueroa v. Wells Fargo Bank N.A., 382 B.R. 814, 823-24 & n.5 (S.D. Fla. 2007); In re Allied Holdings, Inc., 376 B.R. 351, 357-58 (N.D. Ga. 2007). The court applies the § 1292(b) standard here.
Nonetheless, the U.S. Court of Appeals for the Eleventh Circuit has affirmed the application of 28 U.S.C. § 1292(b) to assess the propriety of interlocutory appeals from the bankruptcy court. See In re Charter Co., 778 F.2d 617, 620 n.5 (11th Cir. 1985); see also McCallan v. Hamm, 502 B.R. 245, 247-48 (M.D. Ala. 2013) (collecting opinions from district courts within the Eleventh Circuit applying § 1292(b) to interlocutory bankruptcy orders). --------
While the statute permits review of interlocutory orders, it does not provide criteria for determining when a district court should exercise its discretionary authority to grant leave to appeal; however, the U.S. Court of Appeals for the Eleventh Circuit has implicitly recognized the application of 28 U.S.C. § 1292(b) to such interlocutory orders from the bankruptcy court. See In re Charter Co., 778 F.2d 617, 620 n.5 (11th Cir. 1985) (affirming the district court's application of § 1292(b) in the bankruptcy context); see also McCallan v. Hamm, 502 B.R. 245, 247-48 (M.D. Ala. 2013) (collecting opinions from district courts within the Eleventh Circuit applying § 1292(b) to interlocutory bankruptcy orders). Appellants did not seek leave to appeal an interlocutory order.
”) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) ). If it is not—and thus it is an interlocutory order—Spitz's appeal could be dismissed for lack of jurisdiction, given that the appellant has not asked for the Court's leave to appeal and entertaining such appeals is discretionary. See In re Riggsby, 745 F.2d 1153, 1154 (7th Cir.1984) ; McCallan v. Hamm, 502 B.R. 245, 248 (M.D.Ala.2013). Alas, determining whether Judge Kelley's order denying the Trustee's motion to sell is a final order is a complicated matter.
28 U.S.C. § 158(a)(3)")); Brady v. Otton, 2015 WL 1906204, at *2 (N.D. Cal.) ("with limited exceptions not relevant here, district courts lack jurisdiction over appeals from the interlocutory orders of bankruptcy judges except where the district court grants leave to appeal under 28 U.S.C § 158(a)(3)"); In re Bank of New England Corp., 218 B.R. 643, 652 (1st Cir. BAP 1998) (jurisdiction to hear interlocutory appeals under § 158(a)(3) is "discretionary"); In re Lehman Bros. Inc., 2015 WL 1212635, at *1 (S.D.N.Y.) (declining to "take" jurisdiction under § 158(a)(3) and dismissing the interlocutory appeal for lack of jurisdiction); Hooker v. Wanigas Credit Union, 2020 WL 7253496, at *1 (6th Cir.) (because the district court failed to grant consent to an interlocutory appeal of a bankruptcy court order under § 158(a)(3), its lacked jurisdiction to hear the appeal); McCallan v. Hamm, 502 B.R. 245, 249 (M.D. Ala. 2013) (denying motion for leave to appeal interlocutory bankruptcy court order and dismissing for lack of jurisdiction); Babayoff v. Stevens, 2024 WL 1798182, at *2 (E.D.N.Y.) (appeal of interlocutory bankruptcy court order dismissed for lack of jurisdiction because the district court denied appellant's motion for leave to appeal).
The District Court entered a seven-page Order denying the motion on December 3, 2013. McCallan v. Hamm , 502 B.R. 245 (M.D. Ala. 2013). McCallan appealed the order to the Eleventh Circuit and that appeal was dismissed for lack of jurisdiction on March 4, 2014.