800 F2d 1358 Koerner Koerner Koerner v. Colonial Bank

800 F.2d 1358

55 USLW 2193, 15 Collier Bankr.Cas.2d 711,
15 Bankr.Ct.Dec. 342,
Bankr. L. Rep. P 71,470

In the Matter of Louis R. KOERNER, Jr., Plaintiff-Appellant.
In the Matter of Louis R. KOERNER, Jr., Debtor.
Louis R. KOERNER, Jr., Plaintiff-Appellant,
v.
COLONIAL BANK, Defendant-Appellee.

Nos. 85-3341, 85-3727.

United States Court of Appeals,
Fifth Circuit.

Sept. 24, 1986.

Louis R. Koerner, Jr., New Orleans, La., W. Kenneth Klein, Slidell, La., for plaintiff-appellant.

Harold J. Krent, Dept. of Justice, William Kanter, Atty., Appellate Staff, Civil Div., Washington, D.C., for intervenor, U.S.

Kronish, Lieb, Weiner & Hellman, Lawrence J. Kaiser, New York City, for amicus curiae, Bankruptcy Judges.

Morgan J. Frankel, Michael Davidson, Senate Legal Counsel, Washington, D.C., for intervenor, U.S. Senate.

Charles Tiefer, Steven R. Ross, General Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., for House Speaker and Bipartisan Leadership Group of House of Representatives.

Robert A. Mathis, Metairie, La., for Colonial Bank.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG, and GARWOOD, Circuit Judges.

CLARK, Chief Judge:


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1

Louis Koerner brought two appeals to this court which we consolidated for argument. The first appeal, No. 85-3341, seeks to reverse the district court's interim order rejecting his constitutional challenge to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 333 (the 1984 Act) and remanding the cause to the bankruptcy court. The second appeal, No. 85-3727, contests the district court's final order dismissing Koerner's appeal from the bankruptcy court's order converting the Chapter 11 proceeding to a Chapter 7 involuntary liquidation. We dismiss the appeal in cause No. 85-3341 for lack of jurisdiction. We affirm the district court's order dismissing the appeal in cause No. 85-3727.

I. BACKGROUND

2

Louis R. Koerner, Jr., filed a voluntary petition for reorganization under Chapter 11 of Title 11, United States Code. The matter was referred to the bankruptcy court under the district's interim rule of reference.1 The matter was assigned to Bankruptcy Judge Thomas H. Kingsmill, Jr. The bankruptcy court subsequently granted the motion of a creditor, Colonial Bank, to convert the case to an involuntary liquidation proceeding under Chapter 7. Koerner moved the bankruptcy court for reconsideration of the order of conversion or for a new trial. He also requested "a determination of the unconstitutionality of the bankruptcy laws ... [and the] authority [of] Hon. T.H. Kingsmill to exercise the powers of a bankruptcy judge."

3

Koerner also moved the district court to withdraw the reference to the bankruptcy court so that he might present his constitutional challenge to the 1984 Act to the district court. The district court promptly withdrew its reference of the matter to the bankruptcy court. The district court subsequently rejected Koerner's constitutional challenge and referred the case back to the bankruptcy court for further proceedings. Koerner filed a timely notice of appeal to this court from the district court's order. The Department of Justice, appearing on behalf of the United States Executive Branch, intervened pursuant to 28 U.S.C. Sec. 2403(a) to support Koerner's challenge on appeal. In response, the United States Senate and the House Bipartisan Leadership Group intervened to defend the constitutionality of the 1984 Act. Amici in support of the Act are Bankruptcy Judges Lundin, McFeeley, Paine, Robinson, and Votolato.

4

Following the order referring the cause, the bankruptcy court denied Koerner's motion to reconsider its order of conversion or, in the alternative, for a new trial. Koerner appealed that order to the district court. The district court dismissed the appeal and Koerner filed his second appeal here from the district court's final order of dismissal.

II. APPELLATE JURISDICTION

A. Cause No. 85-3341

5

The appeal to this court in No. 85-3341 is dismissed for lack of jurisdiction. 28 U.S.C. Sec. 158(d) vests courts of appeals with jurisdiction over all final decisions of district courts rendered on appeals from bankruptcy courts. The order of the district court from which this appeal was taken was an original order of that court. It was not entered on an appeal from the bankruptcy court.

6

28 U.S.C. Sec. 1291 provides appellate jurisdiction over final orders which end the litigation on the merits and leave nothing for the court to do but execute the judgment. Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). The rejection of Koerner's constitutional challenge to the 1984 Act was not a final order. It did not end this litigation on the merits. Rather, it returned the matter to the bankruptcy court for further proceedings.

7

This order does not fall within the collateral order doctrine. This court may review a nonfinal order of a district court if the order "conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. at 468, 98 S.Ct. at 2458; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The district court's order affirming the constitutionality of the 1984 Act fails to meet the third requirement because it remains effectively reviewable on appeal from the final judgment in No. 85-3727. This disposition makes our adjudication in No. 85-3341 consistent with that of the Ninth Circuit in In re: Benny, 791 F.2d 712 (9th Cir.1986).

B. Cause No. 85-3727


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8

This court has jurisdiction to hear and decide No. 85-3727. The final order of the district court appealed from in No. 85-3727 was rendered on an appeal to it from an order of the bankruptcy court under 28 U.S.C. Sec. 158(a). This court is clearly vested with jurisdiction over the district court order dismissing Koerner's appeal from the bankruptcy court's decision to deny his motion for reconsideration or for a new trial under 28 U.S.C. Sec. 158(d).

9

Although we lack jurisdiction to hear the appeal from the district court's order rejecting Koerner's constitutional challenge, the appeal in No. 85-3727 necessarily presents the same issue, both because it implicates the jurisdiction of the bankruptcy court and because the unappealable interim order is now a part of the cause properly appealed to the district court and from that court to this court. Before we can decide the merits of Koerner's case, we must determine whether Judge Kingsmill was authorized to exercise the powers of a bankruptcy judge under the 1984 Act.

III. STATUTORY BACKGROUND

10

A brief review of the three major revisions to United States bankruptcy law and procedure since the first bankruptcy law was enacted in 1898 will assist the reader in understanding the 1984 Act. Under the Bankruptcy Act of 1898, district courts were vested with original jurisdiction over bankruptcy proceedings. This was not changed by the 1934 amendments. 11 U.S.C.A.app. Sec. 11. District court judges were empowered to appoint referees in bankruptcy to serve for six years. Id. Sec. 62. When a referee's term expired, he would "continue to perform the duties of his office until his successor is appointed and qualifies." Id. The Bankruptcy Reform Act of 1978 (the 1978 Act) repealed these provisions. Pub.L. No. 95-598, Sec. 401(a), 1978 U.S.Code Cong. & Ad.News (92 Stat.) 2549.

11

Section 201 of the 1978 Act established a "United States Bankruptcy Court" in each judicial district "as an adjunct to the district court for such district." It provided that bankruptcy judges were to be appointed by the President for terms of fourteen years but that a judge could continue to perform the duties of the office "until his successor takes office." Title IV provided a transition period of five years and five months following the date of enactment, Nov. 6, 1978. During this period, each referee in bankruptcy then serving would continue to serve for the remainder of his appointed term unless found not qualified by the Chief Judge of the Circuit in consultation with a merit screening committee. The terms of referees found qualified were to be extended through the end of the transition period, March 31, 1984, and, on expiration of their appointed terms as referees, these successfully screened officials were designated bankruptcy judges.

12

The 1978 Act contained two holdover provisions. The first, Sec. 404(b), states that "[t]he term of a referee in bankruptcy who is serving on the date of enactment of this Act is extended to and expires on March 31, 1984 or when his successor takes office." The second holdover provision, Sec. 404(d), incorporated Sec. 34(a) of the prior law which provided: "[u]pon the expiration of his term, a referee in bankruptcy shall continue to perform the duties of his office until his successor is appointed and qualifies...." 11 U.S.C.A.app. Sec. 62(a).

13

By a series of Extension Acts, the expiration date of the transition provisions of the 1978 Act was extended four times to April 30, 1984, May 25, 1984, June 20, 1984, and June 27, 1984. Then, finally, it was extended to "the day before the date of enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984" by the 1984 Act. Sec. 121(b). The four short-term acts extending the duration of the transition period, Pub.L. No. 98-249, 98 Stat. 116 (Mar. 31, 1984); Pub.L. No. 98-271, 98 Stat. 163 (Apr. 30, 1984); Pub.L. No. 98-299, 98 Stat. 214 (May 25, 1984); Pub.L. No. 98-325, 98 Stat. 268 (June 20, 1984), had two relevant sections. Section 1(b) of the initial extension statute amended Sec. 404(a) and (b) of the 1978 Act by striking out March 31, 1984 and inserting April 30, 1984. Each of the succeeding statutes contained a Sec. 1(b) which substituted a later date. Section 2 of each statute extended the term of office of any bankruptcy judge serving on that date or on the date of enactment of the act.

14

Section 406 of the 1978 Act provided that studies and surveys concerning the number and location of new bankruptcy judgeships were to be made by the Administrative Office of the United States Courts with reports to circuit judicial councils and the Judicial Conference of the United States. The Conference was required to recommend to Congress and the President the number and location of bankruptcy judges. While the judicial studies, surveys, and recommendations were completed as required, no Congressional designations of actual judgeships or locations were ever made. During the transition period, the previously existing bankruptcy courts continued to operate. They were staffed, in large part, by the incumbent referees who continued to serve either as referees or as bankruptcy judges.

15

The 1984 Act designated a total of 232 bankruptcy judgeships for service in specifically fixed numbers in 90 federal district courts. Bankruptcy judges were to be appointed to fourteen-year terms by the respective United States Court of Appeals in which the district court was located. Sec. 104.

IV. THE CONSTITUTIONAL ISSUE

16

The appellants center their constitutional attack on two sections of the 1984 Act. In the first, the term of office of each bankruptcy judge serving on the date of enactment of the 1984 Act was extended to and expired four years after the date of his last appointment or October 1, 1986, whichever was later. Sec. 106(a). In a second provision, the term of office of any bankruptcy judge serving on June 27, 1984 was extended to and expired upon the date of enactment of the 1984 Act. Sec. 121(e).

17

Appellants challenge the retroactive extension of the term of office contained in Sec. 121(e) and the prospective extension of office found in Sec. 106(a) of the 1984 Act as contrary to the Appointments Clause of the Constitution, Art. II, Sec. 2, cl. 2. That clause provides:

18

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

19

The clause functions as an integral part of the fundamental concept of separation of powers. It proscribes any coupling of the legislative power to create governmental offices with the power to select officers to fill those positions. The separation of powers doctrine incorporated throughout the Constitution2 is a safeguard against aggrandizement of one branch of the federal government at the expense of the other. Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). The debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the legislative branch of the National Government will arrogate power to itself at the expense of the other two branches. Id. at 129, 96 S.Ct. at 687.

20

The district court declined to hold either section of the 1984 Act unconstitutional. It rejected Koerner's basic premise that the terms of office of bankruptcy judges ended on June 27, 1984. The court held that the holdover provisions in Sec. 404(b) and (d) of the 1978 Act operated to extend the bankruptcy judges' terms of office until the appointment of their successors. Because the terms of office did not end on June 27, 1984, but continued until July 10, 1984, the possibility of having to give retroactive effect to Sec. 121(e) of the 1984 Act was avoided. Thus, the district court held that Bankruptcy Judge Kingsmill who heard and decided this case was properly continued in office and authorized to exercise the powers of a bankruptcy judge in this matter.

V. CONTENTIONS OF THE PARTIES

21

Koerner challenges the bankruptcy judges' authority to act on the grounds that there is no fair construction of the 1978 Bankruptcy Act, as amended, that would permit the court to conclude that bankruptcy judges were authorized to hold over in office after June 27, 1984. He argues that the holdover provisions of Sec. 404(b) and (d) of the 1978 Act were repealed by the after-enacted Extension Acts which preempt and supercede Sec. 404(b) and (d). If the terms of the bankruptcy judges did not expire on June 27, he claims that there would have been no need to adopt Sec. 121(e) of the 1984 Act because it deals with the same subject as the various Extension Acts. Koerner maintains, however, that even if the 1978 Act had authorized bankruptcy judges to hold over, the constitutional issue cannot be avoided because an office occupied by a holdover is vacant as a matter of law and can only be filled by appointment. Those appointments were made by Congress under Secs. 106(a) and 121(e) of the 1984 Amendments which operate in conjunction to retroactively void that vacancy and appoint the holdover incumbents as their own successors in office.

22

The Department of Justice supports Koerner's statutory argument and enlarges upon his constitutional analysis by asserting that any person holding office and exercising significant authority under the laws of the United States is an officer of the United States and must be appointed to that position in the manner prescribed by the Appointments Clause of the Constitution. Because the Supreme Court has construed that clause to mean that Congress may not, directly or indirectly, designate who will serve as an officer of the United States, Congress could not, through the operation of Secs. 106(a) and 121(e), purport to fill the bankruptcy judgeship positions with the judges serving during the transition period. When those judges' terms of office expired and their offices terminated, they ceased being bankruptcy judges and could not again become bankruptcy judges except by new appointment made pursuant to Article II. The Department of Justice views Secs. 106(a) and 121(e) of the 1984 Amendments as a legislative circumvention of the strictures of Article II because those sections of the Act made bankruptcy judges officers of the United States once again, even though their selection was accomplished, not by either of the two constitutionally prescribed methods, but by legislative command.

23

Koerner's creditor, Colonial Bank, the United States Senate, and the Amici Bankruptcy Judges reply that there was no need for the district court to address the constitutional question because the district court's interpretation of the holdover provisions, although not the only possible statutory construction, is the most coherent interpretation and the only one that satisfies the fundamental requirement that courts construe statutes so as to avoid unnecessary constitutional adjudication. They view the Extension Acts as statutes enacted by Congress to preserve the continuity of the bankruptcy system pending enactment of the 1984 Act which explicitly amended Sec. 404 of the 1978 Act to retain the holdover provisions. If this court does reach the constitutional issue, however, they contend that it should reject the challenge to the Act because Sec. 121(e) was a valid retroactive extension of the judges' terms and was not an invalid legislative appointment.

24

The Speaker and Bipartisan Leadership Group of the House of Representatives defend the constitutionality of the Act on two bases. First, they say Congress has a well-recognized power to extend the terms of appointees, especially in the aid of smooth judicial transitions. Second, because judicial transitions require a complex and sometimes controversial process, and Congress occasionally does not complete all of the steps prior to the transition, it may be permitted to legislate after the fact. They contend that the Benner-Freeborn doctrine3 sustains the constitutionality of statutes which retroactively cure gaps in judicial transitions. That doctrine, they say, should apply unless it contravenes a constitutional provision with a direct prohibition against retroactivity, such as the ex post facto clause, and the Appointments Clause includes no such direct prohibition.

VI. DISCUSSION

A. Statutory Construction

25

The cardinal purpose of a court in construing statutes is to determine the intent of Congress. The intent of the 1978 and 1984 Acts is boldly plain. The fundamental intent was to preserve, improve, and restructure the bankruptcy system. Equally apparent is the intent that bankruptcy courts were always to exist with the least possible disruption of function. A fair reading of the transition provisions of the 1978 and 1984 Acts and their legislative history discloses that the office of referee in bankruptcy and bankruptcy judge was not to be abolished. Rather, the incumbents were to be continued in office during the phase of transition and until the appointing power replaced them by designating new officers for new offices.4

26

Congress recognized an imperative need of the bankruptcy system to maintain the cadre of experienced referees and judges then serving until the designated appointing power could fill newly created offices. This is most dramatically demonstrated by reconstructing the actual operation of the legislation. The appendix to this opinion traces by name and tenure the various persons who staffed these courts before, during, and after the enactment of these Acts. It demonstrates how the experience and continued service of the duly appointed incumbents continued through the transition periods under both Acts. The appendix further reflects that sources outside the Congress appointed every one of these officers. All that the Congress did was to extend the period of their service. This was done once, albeit briefly, by retroactive action to cover the 13 day "gap" period.

1. The 1978 Act

27

Like most legislation, the 1978 Act was the product of compromise. A corps of Article III judges exercising bankruptcy jurisdiction in bankruptcy courts wholly separate from district courts was desired by some legislators. Article I judges serving as "adjuncts" or "departments" of district courts were desired by others. In the final version of the 1978 Act, the judicial officers were continued as adjunct Article I appointees but were given broad Article III powers.

28

Initially, the incumbent referees in bankruptcy were to be phased in as bankruptcy judges after undergoing merit selection panel scrutiny. Sec. 404(b). After a transition period of approximately five and one-half years, the appointing power was to be placed in the President to name bankruptcy judges to 14-year terms. However, before the effective date for presidential appointments arrived and before the number of judges and their locations were determined by Congress, the Supreme Court struck down the 1978 Act's broad grant of jurisdiction to bankruptcy courts as unconstitutionally conferring Article III power on Article I judges. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).

2. The 1984 Act

29

The Marathon decision prompted renewed Congressional deliberations over how to revamp the bankruptcy system. The Extension Acts were passed to allow more time to resolve the differences between the Senate and House attempts to deal with Marathon. See 130 Cong.Rec. H4842 (daily ed. May 24, 1984) (remarks of Rep. Frenzel); 130 Cong.Rec. S3501 (daily ed. Mar. 30, 1984) (remarks of Sen. Heflin). Congress was working out the final details of the new system when National Labor Relations Board v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984) was decided. The Supreme Court ruled in Bildisco that companies in bankruptcy reorganization could unilaterally cancel their collective bargaining agreements.

30

The timing of such a major and unsettling court decision as Bildisco resulted in a gap from June 27 to July 10 in the times of extension. This hiatus between the end of the final Extension Act and the effective date of the 1984 Act obviously did not come about through legislative design. It must be attributed to efforts to reconstruct complicated legislation, to resolve House and Senate differences, and to respond to the legislatively volatile labor issues created by Bildisco. Once the gap came about, it is clear that Congress intended to cure it by a retroactive extension, not to usurp the appointing power, but to continue the theme of transferring judicial power by extending existing, experienced judicial officers until new appointments could be made.

31

It would mock the purpose of legislative construction to apply a standard rule of construction that would indicate Congress ever intended to lapse the office of bankruptcy judge or to end the terms of any incumbent. Congress obviously was doing its very best to preserve the system and its function. Given this intent, we must look for a reasonable construction of the statutes enacted under which the office of bankruptcy judge would not cease to exist during this time.

32

Under the construction we adopt, there was no break in service because the term of a bankruptcy judge serving under Sec. 404(b) of the transition provisions of the 1978 Act, as extended, was to expire on June 27, 1984 "or when his successor takes office." No successors were ever named, attempted to be named, or could have been named since there was no appointing authority at that time. The President's appointment authority, which had been intended to become effective at the end of the transition period, see 1978 Act, Secs. 201(a), 402(b), did not become effective on June 28, 1984, or ever. Before the President's appointment authority could become effective, the 1978 Act required legislation "to establish the appropriate number of judgeships." H.R.Rep. No. 595, 95th Cong., 1st Sess. 290 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6246. Congress did not authorize any new bankruptcy judgeships until it enacted the 1984 Amendments on July 10, 1984. On the same date, Congress repealed the presidential appointing authority, 1984 Act, Sec. 113, and gave the power of appointment for bankruptcy judges to the courts of appeals, Sec. 104(a). Accordingly, Congress never activated the contemplated presidential appointing authority.

33

The authority of the district courts to appoint bankruptcy judges had lapsed on June 27, 1984, 1978 Act, Sec. 404(d), as amended by Sec. 1(b) of the Extension Acts (extending transition period through June 27, 1984). The current authority of the courts of appeals to appoint bankruptcy judges did not come into existence until July 10, 1984. 1984 Act, Secs. 104(a), 122(a). Thus, during the thirteen days in which the incumbent judges were holdovers, no entity had the authority to make new appointments.

34

Since the alternative expiration of a serving bankruptcy judge's tenure did not occur, he remained in office until the 1984 Act took effect. Such a construction is reasonable, harmonious with obvious Congressional intent, and does not conflict with the Appointments Clause. We adopt it.

35

Appellants claim that the specific extension of a term of office in Sec. 2 of the Extension Acts5 controls over the Sec. 404(b) extension of the term granted to an officer because the more narrow section of the statute controls the broader, citing Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). We reject this argument. Applying this rule of statutory construction designed to indicate legislative intent when it is doubtful to the case before us would overcome the transparent intent of Congress, not assist in finding it.6

B. Constitutionality

36

Our discussion of the principles of statutory construction and the decision we reach there may be sufficient to affirm the portion of the decision of the district court that underlies the jurisdiction of the bankruptcy judge to make the decision in this cause. Were this not an extraordinary case, involving as it does the validity of literally hundreds of thousands of cases and controversies and the work of hundreds of judges in the federal court system, we would leave the decision there and avoid any hint of constitutional adjudication. But it is such an extraordinary case. Furthermore, the constitutional principle is extremely limited, factually uncomplicated, and its straightforward application is no more than an analogue of the statutory decision already announced.

37

Congress has the constitutional power to make reasonable changes in the duties of any office it creates, including shortening or lengthening the term of service. See Crenshaw v. United States, 134 U.S. 99, 106, 10 S.Ct. 431, 433, 33 L.Ed. 825 (1890); and Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893). Such action does not transgress the Appointments Clause. Obviously, it is possible to suggest changes of such duration or condition as could impair the appointment power. Under the limited circumstances of this case, it is clear that the action of Congress was a constitutionally reasonable change in the term of an existing office. We decide only the case before us and expressly disavow any adjudication of other, hypothetical changes in duties or terms of an office.

38

We further hold that under the circumstances of this case, it is constitutionally possible for Congress to make this change on a retroactive basis. The gap was minimal. Its occurrence was plainly accidental and the response was both consistent with past action and reasonable. Finally, we note that no executive or judicial appointing authority was empowered to name bankruptcy judges during this period. Again, we disclaim any intent to adjudicate the constitutional effect of all possible complications that might result from a longer retroactive extension under any different circumstances.

39

To the remote extent the Appointments Clause can be said even to be implicated in this scenario, there was no Congressional intent to violate it. Congress sought to preserve a viable bankruptcy court system until the type of judgeship, term, and location it had decided upon could be implemented. "[T]he effect of the 1984 Act [was] to continue in office properly appointed judicial officers, and not to select or appoint new individuals to judicial office." In re Tom Carter Enterprises, Inc., 44 B.R. 605, 608 (C.D.Cal.1984).

40

We agree with the district court's conclusion that Congressional actions in extending bankruptcy judges' terms of office are not invalid legislative appointments. Because Congress did not usurp the appointment prerogative of the executive or judicial branches of the federal government or upset the constitutional symmetry among the branches, neither the 1978 Act, the Extension Acts, nor the 1984 Act constituted an exercise of the appointment power in violation of the Appointments Clause.

41

Judge Kingsmill was validly acting as a bankruptcy judge when he heard and decided this case. The district court had jurisdiction to enter the final judgment it did and we have jurisdiction of this appeal.

VII. THE MERITS

42

Having determined that Judge Kingsmill was authorized to exercise the powers of a bankruptcy judge, we turn to the merits of this particular case. Koerner appeals the district court's dismissal of his appeal of the bankruptcy judge's decision to deny reconsideration of his conversion order or a new trial on that issue.

43

Legislative history surrounding this section of the Bankruptcy Act indicates that in acting upon a request for conversion, the bankruptcy court is afforded wide discretion.7 Koerner argues that the bankruptcy court erred in ordering conversion from Chapter 11 to Chapter 7 because the bankruptcy judge did not have adequate facts and information upon which to exercise that discretion. Specifically, he complains that neither the bankruptcy court nor the district court held a hearing or made a ruling on two motions that bear on the adequacy, feasibility, and practicability of his plan of reorganization. The first was the Motion to Determine Property of the Estate and the second was the Motion for Appraisal of the principal asset of the estate. Because the reasons given for the bankruptcy court's order do not mention the equity in the estate or the determination of property values, Koerner submits that the bankruptcy court failed to consider these factors, rendering its order unfair and inequitable.

44

Koerner's argument is not well taken. The bankruptcy judge is not required to give exhaustive reasons for his decision. He is only required to comply with 11 U.S.C. Sec. 1112(b)(2) which provides that the court may convert a reorganization proceeding to a straight bankruptcy for cause including "(2) inability to effectuate a plan; [and] (3) unreasonable delay by the debtor that is prejudicial to creditors." The court specifically noted that it had given the debtor every opportunity to submit feasible plans over a 16 month period. Instead, Koerner submitted what the bankruptcy judge described as a nebulous plan based on projected legal fees that was neither adequate, feasible nor practicable and would not result in a reorganization.

45

The record does not indicate that the bankruptcy court abused its discretion. Koerner failed to submit an effectual plan and the court found that any additional continuance of the proceedings would be detrimental to the parties. Either of these two grounds was cause for conversion. The judgment appealed from is

46

AFFIRMED.

Tab A-1

47

            Former Bankruptcy Judges Who Were Serving
                       On November 6, 1978
Name                               Term of Office     Reason
---------------------------------  -----------------  -----------
Arnold M. Adams (AR)               01/02/62-11/07/82  Deceased
Charles A. Anderson (OH-S)         11/16/61-02/28/85   Retired
Roy Babitt (NY-S)                  12/21/64-07/31/82   Retired
Charles W. Baker (AR)              02/01/73-03/25/84  Resigned
Frank R. Barker (MO-W)             03/01/69-11/30/85   Retired
John E. Bergener (CA-C)            08/16/55-11/30/83   Retired
Joseph J. Betley (NH)              10/18/45-08/22/83  Deceased
Stewart C. Bland (KY-W)            02/11/75-05/31/82  Resigned
John R. Blinn (TX-S)               01/08/75-01/31/82  Resigned
Harold H.Bobier (MI-E)             09/01/61-09/30/82   Retired
Gene E. Brooks (IN-S)              03/01/68-10/16/79  Resigned *
Conley S. Brown (CA-N)             01/01/59-06/01/86   Retired
William G. Caffey, Jr.  (AL-S)      01/16/70-12/31/84   Retired
Hugh M. Caldwell (AZ)              10/16/60-05/03/83  Deceased
Ezra H. Cohen (GA-N)               04/01/76-06/30/79  Resigned
Stephen B. Coleman (AL-N)          09/15/38-04/16/85   Retired
Herman W. Coolidge (GA-S)          07/01/75-05/30/86   Retired
Joseph V. Costa (NY-E)             03/01/64-07/11/80  Deceased
Basil H. Coutrakon (IL-C)          05/01/46-11/30/85   Retired
David L. Crawford (NE)             10/05/73-06/28/85  Resigned
Conrad K. Cyr (ME)                 07/01/61-10/01/81  Resigned *
Edward E. Davis (AZ)               09/12/69-05/01/81  Resigned
D. Joseph DeVito                   03/06/72-04/07/86  Deceased
Jacob Dim (MN)                     12/01/63-07/06/82  Deceased
Barney E. Eaton, III (MS-S)        11/01/68-01/14/86  Resigned
Lawrence Fisher (IL-N)             08/01/72-10/15/84  Resigned
Edwin F. Flowers (WV-S)            01/12/77-10/12/83  Resigned
Ernest J. Flowers (TX-N)           09/01/72-09/15/83  Resigned
John C. Ford (TX-N)                05/13/61-09/03/85   Retired
John J. Galgay (NY-S)              07/01/73-05/27/84  Deceased
Dean M. Gandy (TX-N)               10/01/70-06/01/83  Resigned
Leonard C. Gartner (OH-S)          07/02/62-05/30/82  Deceased
Lloyd D. George (NV)               02/28/74-05/03/84  Resigned *
Gerald K. Gibson (PA-W)            07/01/55-06/12/85  Deceased
Paul W. Glennon (MA)               03/01/62-02/28/86   Retired
Glenn J. Goldburn (MD)             11/02/72-08/11/81  Resigned
Bert M. Goldwater (NV)             10/01/64-05/31/82   Retired
Orville Gray (MT)                  05/25/55-07/09/84   Retired
Harry G. Hackett (MI-E)            07/01/57-06/24/81   Retired
L. Warden Hanel (WA-E)             09/14/73-11/15/81   Retired
Philip Hickson (VA-W)              07/01/47-08/31/80   Retired
Howard W. Hilgendorf (WI-E)        07/01/59-12/31/81   Retired
Richard W. Hill (NJ)               02/26/75-07/20/84  Resigned
Russell H. Hippe, Jr.  (TN-M)       09/28/78-10/01/81  Resigned
Michael R. Hogan (OR)              08/13/73-09/30/80  Resigned **
William T. Holmes (VI)             11/03/77-07/24/81   Retired
Leon J. Hopper (AL-M)              04/02/56-08/25/84  Deceased
C. Odell Horton (TN-W)             06/01/76-05/15/80  Resigned *
Joe D. Huffstutler (TX-E)          01/01/53-09/30/85   Retired
Robert L. Hughes (CA-N)            11/21/68-02/29/84  Resigned
William H. Hyer (CA-C)             02/15/64-05/31/85   Retired
Paul G. Hyman (FL-S)               01/12/71-10/01/79  Deceased
Dale E. Ihlenfeldt (WI-E)          11/01/66-03/31-86   Retired
George R. Inglish (OK-E)           07/01/65-09/30/83  Resigned
Thomas W. James (IL-N)             07/05/72-10/30/84   Retired
Paul E. Jennings (TN-M)            09/01/72-05/25/82  Resigned
Folger Johnson (OR)                02/01/55-03/31/84   Retired
Robert A. Johnson (MN)             10/01/78-11/30/81  Resigned
Jack C. Jones (MI-W)               09/01/65-11/18/79  Deceased
Joseph O. Kaiser (MD)              01/01/56-03/31/79   Retired
John H. Kamlowsky (WV-N)           10/16/69-07/28/84   Retired
Herbert Katz (CA-S)                05/08/72-03/15/83  Resigned
Glen E. Keller, Jr.  (CO)           05/01/74-02/01/82  Resigned
Ellis W. Kerr (OH-S)               02/04/63-04/30/85   Retired
David A. Kline (OK-W)              01/27/69-09/30/82   Retired
Thomas W. Lawless (MA)             07/15/60-12/31/85   Retired
Stanley T. Lesser (NY-S)           01/26/76-09/30/79  Resigned
Joel Lewittes (NY-S)               01/14/77-01/14/83  Resigned
Max J. Lipkin (IL-C)               12/02/74-06/30/85   Retired
William Lipkin (NJ)                07/01/47-04/30/84   Retired
Clarence Luckey (OR)               07/07/61-11/30/83   Retired
Ralph R. Mabey (UT)                02/09/79-07/01/83  Resigned
Vincent D. Maggiore (AZ)           12/01/64-05/31/83   Retired
Leon J. Marketos (NY-N)            07/01/69-06/30/85   Retired
Charles J. Marro (VT)              03/06/41-07/31/85   Retired
Patrick J. McNulty (MN)            11/15/68-02/15/85  Resigned
Richard L. Merrick (IL-N)          01/15/74-08/31/84   Retired
Joseph T. Molitoris (OH-N)         01/22/65-01/21/83   Retired
John P. Moore (CO)                 01/15/75-07/01/82  Resigned *
James E. Moriarty (CA-C)           01/21/63-11/09/82  Deceased
Robert B. Morton (KS)              04/27/62-05/02/86   Retired
Algie M. Moseley, Jr.  (GA-M)       10/16/83-03/31/86   Retired
Frank R. Murray (TX-N)             12/15/49-12/14/79   Retired
Russell H. Nehrig (IN-N)           11/01/55-06/27/84   Retired
Hartley Nordin (MN)                07/01/66-12/31/83   Retired
William L. Norton, Jr.  (GA-N)      12/08/71-04/30/85   Retired
Robert L. Ordin (CA-C)             12/03/73-09/01/83  Resigned
Kenneth G. Owens (MN)              12/01/58-09/24/83  Deceased
W. Joseph Patterson, Jr.  (GA-M)    09/01/73-07/31/80   Retired
David H. Patton (MI-E)             03/26/65-01/04/82   Retired
Edward H. Patton, Jr.  (TX-S)       11/15/71-08/15/83  Resigned
Phil Peden (TX-S)                  01/15/82-02/01/85  Resigned
Bryte M. Peterson (CA-E)           11/28/67-11/27/79   Retired
Aaron K. Phelps (CA-C)             10/15/65-03/31/84   Retired
Harvey H. Posner (LA-M)            11/16/61-02/29/80   Retired
Manuel J. Price (NY-E)             07/01/65-07/31/84   Retired
Oreste L. Puccini, Jr.  (MN)        08/22/79-08/01/81  Resigned
Ross M. Pyle (CA-S)                07/14/75-02/28/85  Resinged
Boris Radoyevich (NY-E)            11/28/67-03/31/85   Retired
Eugene J. Raphael (MS-N)           01/16/70-04/30/83   Retired
Frederick W. Reyland, Jr.  (CA-E)   11/08/67-11/08/79   Retired
William E. Rutledge (OK-N)         10/27/60-05/20/83   Retired
Edward J. Ryan (NY-S)              07/01/63-02/28/85   Retired
William A. Scanland (AZ)           08/18/77-03/01/86   Retired
Bernhard Schaffler (PA-W)          11/03/76-03/31/80  Resigned
Mark Schlachet(OH-N)               10/22/77-10/04/82  Resigned
William M. Schultz (TX-S)          10/01/75-12/21/81  Resigned
John J.Shanahan (MO-E)             12/15/67-03/03/82  Deceased
Robert J. Sidman (OH-S)            07/17/75-05/01/82  Resigned
Amel Stark (NJ)                    09/01/69-05/31/85   Retired
William W. Thinnes (IA-N)          03/27/65-09/04/85  Deceased
Bert W. Thompson (TX-W)            02/09/71-05/31/85   Retired
Gordon Thompson (ND)               11/09/65-09/28/79   Removed
R. Lewis Townsend (NY-S)           07/08/63-08/31/79   Retired
Kenneth S. Treadwell (WA-W)        08/07/67-09/01/85   Retired
Robert E. Trevethan (CT)           11/01/49-06/30/70   Retired
William R. Vance (AL-N)            02/07/62-11/30/81   Retired
Harvey D. Walker (MI-E)            10/27/77-10/27/83   Retired
William B. Washabaugh, Jr.  (PA-W)  07/20/59-03/22/85   Retired
Roger M. Whelan (DC)               07/01/71-12/31/83  Resigned
Thomas Wood (PA-M)                 07/01/78-08/06/82   Retired
Merlin S. Young (ID)               03/01/70-07/01/84   Retired

Note FN*Appoited U.S. District Judge

Note FN**Apponted FT U.S. Magistrate

Tab A-2

48

        Incumbent Bankruptcy Judges Who Were Serving
                    On November 6, 1978
Name                            Distict               E.O.D.
------------------------------  ------------------  --------
Frederick A. Johnson            Maine               05/01/75
Harold Lavien                   Massachusetts       08/22/72
James N. Gabriel                Massachusetts       12/19/77
William H. Beckerleg            Puerto Rico         08/01/78
Antonio I. Hernandez-Rodriguez  Puerto Rico         03/01/76
Arthur N. Votolato, Jr.         Rhode Island        06/25/68
Robert L. Krechevsky            Connecticut         11/01/78
Cecelia H. Goetz                New York (E)        08/01/78
C. Albert Parente               New York (E)        02/01/72
Robert J. Hall                  New York (E)        11/22/76
Justin J. Mahoney               New York (N)        07/14/69
Howard Schwartzberg             New York (S)        04/19/71
Beryl E. McGuire                New York (W)        04/01/68
John W. Creahan                 New York (W)        08/01/77
Edward D. Hayes                 New York (W)        09/16/74
Helen S. Balick                 Delaware            05/21/74
Vincent J. Commisa              New Jersey          12/01/67
Willaim A. King, Jr.            Pennsylvania (E)    12/31/75
Emil F. Goldhaber               Pennsylvania (E)    06/29/66
Thomas M. Twardowski            Pennsylvania (E)    04/28/75
Thomas C. Gibbons               Pennsylvania (M)    03/17/55
Thomas M. Moore                 Noth Carolina (E)   11/01/60
Rufus W. Reynolds               North Carolina (M)  08/16/46
James B. Wolfe, Jr.             North Carolina (M)  08/01/77
Marvin R. Wooten                North Carolina (W)  05/01/76
J. Bratton Davis                South Carolina      07/01/69
Martin V.B. Bostetter, Jr.      Virginia (E)        07/01/59
Hal J. Bonney, Jr.              Virginia (E)        01/01/71
Blackwell N. Shelley            Virginia (E)        02/02/76
Thomas J. Wilson, III           Virginia (W)        09/01/65
H. Clyde Pearson                Virginia (W)        03/16/70
Thomas M. Brahney, III          Louisiana (E)       07/01/69
Thomas H. Kingsmill, Jr.        Louisiana (E)       09/07/71
Francis R. Bernard, Jr.         Louisiana (W)       01/01/76
LeRoy C. Smallenberger          Louisiana (W)       11/03/54
Joseph C. Elliott               Texas (W)           08/04/75
Joe Lee                         Kentucky (E)        09/01/61
Merritt S. Deitz, Jr.           Kentucky (W)        01/31/77
George Brody                    Michigan (E)        04/14/60
David E. Nims, Jr.              Michigan (W)        04/15/55
Laurence E. Howard              Michigan (W)        01/14/76
Marvin L. Heitman               Michigan (W)        11/08/74
Harold F. White                 Ohio (N)            05/01/58
James H. Williams               Ohio (N)            06/05/72
John F. Ray, Jr.                Ohio (N)            07/01/75
William J. O'Neill              Ohio (N)            06/01/61
Walter J. Krasniewski           Ohio (N)            09/01/65
Richard L. Speer                Ohio (N)            09/02/75
Burton Perlman                  Ohio (S)            07/22/76
Grady L. Pettigrew, Jr.         Ohio (S)            06/22/77
Duane J. Kelleher               Ohio (S)            07/01/60
Ralph H. Kelley                 Tennessee (E)       01/02/69
Clive W. Bare                   Tennessee (E)       07/01/57
William B.Leffler               Tennessee (W)       03/19/71
Larry L. Lessen                 Illinois (C)        07/01/73
Edward B. Toles                 Illinois (N)        01/01/69
Charles B. McCormick            Illinois (N)        10/14/66
Federick J. Hertz               Illinois (N)        07/31/74
Robert L. Eisen                 Illinois (N)        05/01/75
Richard N. DeGunther            Illinois (N)        07/26/71
James D. Trabue                 Illinois (S)        10/05/62
Robert K. Rodibaugh               Indiana (N)       11/11/60
Robert L. Bayt                    Indiana (S)       03/07/77
Richard W. Vandivier              Indiana (S)       01/02/74
Nicholas W. Sufana                Indiana (S)       09/01/64
Charles N. Clevert, Jr.           Wisconsin (E)     11/07/77
William H. Frawley                Wisconsin (W)     09/01/62
Robert D. Martin                  Wisconsin (W)     06/01/78
Richard F. Stageman               Iowa (S)          05/15/62
John J. Connelly                  Minnesota         11/01/65
Robert E. Brauer                  Missouri (E)      07/01/61
James J. Barta                    Missouri (E)      09/01/78
Dennis J. Stewart                 Missouri (W)      11/15/76
Peder K. Ecker                    South Dakota      07/01/69
J. Douglas Williams, II           Alaska            01/02/74
William J. Lasarow                California (C)    08/01/73
James R. Dooley                   California (C)    11/01/76
Barry Russell                     California (C)    09/01/74
Calvin K. Ashland                 California (C)    04/28/76
Richard Mednick                   California (C)    01/05/76
David N. Naugle                   California (C)    03/01/76
Peter M. Elliott                  California (C)    01/01/71
Eckhart A. Thompson               California (E)    02/16/72
Robert E. Woodward                California (E)    07/01/64
Cameron W. Wolfe                  California (N)    04/01/75
Lloyd King                        California (N)    12/01/75
Seymour J. Abrahams               California (N)    01/20/75
Warren C. Moore                   California (N)    10/18/65
James W. Meyers                   California (S)    01/05/76
Jon J. Chinen                     Hawaii            05/01/76
John L. Peterson                  Montana           02/18/63
Donal D. Sullivan                 Oregon            10/01/69
Henry L. Hess                     Oregon            05/12/58
Samuel J. Steiner                 Washington (W)    06/23/78
Sidney C. Volinn                  Washington (W)    03/01/64
Robert W. Skidmore                Washington (W)    07/29/74
Patricia A. Clark                 Colorado          01/25/74
John F. McGrath                   Colorado          11/01/67
Benjamin E. Franklin              Kansas            02/09/76
James A. Pusateri                 Kansas            12/17/76
Robert L. Berry                   Oklahoma (W)      12/17/73
Harold L. Mai                     Wyoming           02/03/71
Rodney R. Steele                  Alabama (M)       09/01/67
L. Chandler Watson, Jr.           Alabama (N)       11/09/61
William E. Johnson, Jr.           Alabama (N)       11/15/72
Edwin D. Breland                  Alabama (N)       05/01/61
George S. Wright                  Alabama (N)       11/01/61
Gordon B. Kahn                    Alabama (S)       05/23/74
George L. Proctor                 Florida (M)       12/23/75
Alexander L. Paskay               Florida (M)       07/01/63
N. Sanders Sauls                  Florida (N)       01/01/78
Sidney M. Weaver                  Florida (S)       04/01/78
Thomas C. Britton                 Florida (S)       06/24/75
Hugh Robinson, Jr.                Georgia (N)       01/15/76
A.  David Kahn                     Georgia (N)       01/01/68

Tab B

49

                              Bankruptcy Judges Found Not Qualified
            Name                                       District
            ----                                       --------
            Harry G. Hackett                           Michigan (Eastern)
            Vincent D. Maggiore                        Arizona

Tab C

50

    STATUS OF BANKRUPTCY JUDGES NOT YET APPOINTED TO FOURTEEN YEAR TERMS OF
-------------------------------------------------------------------------------
                           OFFICE AS OF JULY 1 1986
                           ------------------------
                                                         LAST OR
                                                         Sec. 404(b)
CIRCUIT/DISTRICT           INCUMBENT                   CONTINUATION  EXPIRATION
----------------           ---------                   ------------  ----------
 D.C.  D.C.                George F. Bason, Jr.          02/08/84     02/07/88
    1
       Maine               Federick A. Johnson           05/01/81     10/01/86
                           James A. Goodman              12/30/81     10/01/86
       Massachusetts       VACANCY (Glennon)
                           James N. Gabriel              12/19/83     12/18/87
                           Harold Lavien                 08/22/78     10/01/86
                           VACANCY (Lawless)
       Puerto Rico         Antonio I. Hernandez-
                           Rodriguez                     03/01/82     10/01/86
                           William H. Beckerleg          08/01/78     10/01/86
    2
       New York (N)        Justin J. Mahoney             07/14/81     10/01/86
       New York (E)        C. Albert Parente             02/01/84     01/31/88
       New York (W)        Beryl E. McGuire              04/01/80     10/01/86
                           John W. Creahan               08/01/83     07/31/87
                           Edward D. Hayes               09/16/80     10/01/86
    3
       New Jersey          Vincent J. Commisa            12/01/79     10/01/86
                           VACANCY (DeVito)
       Pennsylvania (E)    Emil F. Goldhaber             06/29/78     10/01/86
                           William A. King, Jr.          12/31/81     10/01/86
       Virgin Islands      Albert A. Sheen               02/11/82     07/09/86
    4
       Maryland            James F. Schneider            02/01/82     10/01/86
                           Paul Mannes                   01/04/82     10/01/86
       North Carolina (E)  Thomas M. Moore               11/01/78     10/01/86
                           A. Thomas Small               12/14/82     12/13/86
       North Carolina (M)  Rufus W. Reynolds             07/01/79     10/01/86
                           James B. Wolfe, Jr.           08/01/83     07/31/87
       North Carolina (W)  Marvin R. Wooten              05/01/82     10/01/86
       South Carolina      J. Bratton Davis              07/01/81     10/01/86
       Virginia (E)        Martin V.B. Bostetter, Jr.    07/01/83     06/30/87
                           Hal J. Bonney, Jr.            01/01/83     12/31/86
                           Blackwell N. Shelley          02/02/82     10/01/86
       Virginia (W)        H. Clyde Pearson              03/16/82     10/01/86
                           Thomas J. Wilson, III         09/01/83     08/31/87
                           William E. Anderson           12/05/80     10/01/86
       West Virgina (S)    Ronald G. Pearson             10/12/83     10/11/87
    5
       Louisiana (E)       Thomas H. Kingsmill, Jr.      09/07/83     09/06/87
       Louisiana (W)       LeRoy C. Smallenberger        11/03/78     10/01/86
                           Francis R. Bernard, Jr.       01/01/82     10/01/86
       Mississippi (S)     T. Glover Roberts             04/06/81     10/01/86
       Texas (S)           Manuel D. Leal                10/07/83     10/01/87
       Texas (W)           Joseph C. Elliott             08/04/81     10/01/86
    6
       Kentucky (E)        Joe Lee                       09/01/79     10/01/86
       Kentucky (W)        Merritt S. Deitz, Jr.         01/31/83     01/30/87
                           G. William Brown              08/02/82     10/01/86
       Michigan (E)        George Brody                  04/14/84     04/13/88
                           Arthur J. Spector             03/29/84     03/28/88
                           Ray R. Graves                 01/04/82     10/01/86
       Michigan (W)        Laurence E. Howard            01/14/82     10/01/86
                           David E. Nims, Jr.            04/15/79     10/01/86
                           Marvin L. Heitman             11/08/80     07/09/86
       Ohio (N)            William J. O'Neill            06/01/79     10/01/86
                           John F. Ray, Jr.              07/01/81     10/01/86
                           Harold F. White               05/01/82     10/01/86
                           James H. Williams             06/05/84     06/04/88
                           Walter J. Krasniewski         09/01/83     08/31/87
                           Richard L. Speer              09/02/81     10/01/86
       Ohio (S)            Duane J. Kelleher             07/01/78     10/01/86
                           Grady L. Pettigrew, Jr.       06/22/83     06/21/87
                           Burton Perlman                07/22/82     10/01/86
                           Randall J. Newsome            10/15/82     10/14/86
       Tennessee (E)       Clive W. Bare                 07/01/81     10/01/86
                           Ralph H. Kelley               01/02/81     10/01/86
       Tennessee (M)       Keith M. Lundin               05/25/82     10/01/86
                           George C. Paine, II           10/15/81     10/01/86
       Tennessee (W)       William B. Leffler            03/19/83     03/18/87
                           David S. Kennedy              11/24/80     10/01/86
       Illinois (N)        Frederick J. Hertz            07/31/80     10/01/86
                           Charles B. McCormick          10/14/78     10/01/86
                           Edward B. Toles               01/01/81     10/01/86
                           Richard N. DeGunther          07/26/83     07/25/87
       Illinois (S)        James D. Trabue               10/05/80     10/01/86
       Indiana (N)         Robert K. Rodibaugh           11/11/78     10/01/86
       Indiana (S)         Robert L. Bayt                03/07/83     03/06/87
                           Nicholas W. Sufana            09/01/82     10/01/86
                           Richard W. Vandivier          01/02/80     10/01/86
                           Michael H. Kearns             02/14/80     10/01/86
       Wisconsin (W)       Robert D. Martin              06/01/84     05/31/88
                           William H. Frawley            09/01/80     10/01/86
       Arkansas (E)&
       (W)                 James G. Mixon                03/26/84     03/25/88
                           Robert F. Fussell             01/17/83     01/13/87
       Iowa (S)            Richard F. Stageman           05/15/80     10/01/86
       Minnesota           Dennis D. O'Brien             04/30/84     04/29/88
                           Margaret A. Mahoney           02/22/84     02/21/88
                           John J. Connelly              11/01/83     10/31/87
                           Robert J. Kressel             12/06/82     12/05/86
                           Gregory F. Kishel             05/24/84     07/09/86
       Missouri (E)        James J. Barta                09/01/78     10/01/86
                           Robert E. Brauer              07/01/79     10/01/86
                           David P. McDonald             12/03/82     12/02/86
       Missouri (W)        Dennis J. Stewart             11/15/82     11/14/86
       North Dakota        William A. Hill               03/21/84     03/20/88
       South Dakota        Peder K. Ecker                07/01/81     10/01/86
       Alaska              J. Douglas Williams, II       01/02/80     10/01/86
       Arizona             VACANCY (Scanland)
                           Lawrence Ollason              07/27/83     07/26/87
       California (N)      Lloyd King                    12/01/81     10/01/86
                           Cameron W. Wolfe              04/01/81     10/01/86
                           VACANCY (Brown)
                           Seymour J. Abrahams           01/20/81     10/01/86
                           Warren C. Moore               10/18/83     10/17/87
                           Jack J. Rainville             09/25/81     10/01/86
       California (E)      Robert E. Woodward            07/01/82     10/01/86
                           Joseph W. Hedrick, Jr.        01/11/80     10/01/86
                           Eckhart A. Thompson           02/16/84     02/15/88
       California (C)      Calvin K. Ashland             04/28/82     10/01/86
                           Geraldine Mund                02/09/84     02/08/88
                           James R. Dooley               11/01/82     10/31/86
                           William J. Lasarow            08/01/79     10/01/86
                           Richard Mednick               01/05/82     10/01/86
                           Barry Russell                 09/01/80     10/01/86
                           Peter M. Elliott              01/01/83     12/31/86
                           Ralph G. Pagter               01/26/84     01/25/88
                           David N. Naugle               03/01/82     10/01/86
       California (S)      James W. Meyers               01/05/82     10/01/86
                           Louise D. Malugen             03/06/84     03/05/88
       Hawaii              Jon J. Chinen                 05/01/82     10/01/86
       Oregon              Henry L. Hess                 07/01/79     10/01/86
                           Elizabeth L. Perris           04/01/84     03/31/88
                           Donal D. Sullivan             10/01/81     10/01/86
                           Polly S. Wilhardt             12/03/83     11/30/87
                           Albert E. Radcliffe           12/21/83     07/09/86
       Washington (E)      John M. Klobucher             12/07/81     10/01/86
       Washington (W)      Samuel J. Steiner             06/23/84     06/22/88
                           Sidney C. Volinn              03/01/82     10/01/85
                           Robert W. Skidmore            07/29/80     10/01/86
   10  Kansas              Benjamin E. Franklin          02/09/82     10/01/86
                           James A. Pusateri             12/17/82     12/16/86
       Oklahoma (N)        Mickey D. Wilson              06/01/83     05/31/87
       Oklahoma (E)        James E. Ryan                 10/01/83     07/09/86
       Oklahoma (W)        Robert L. Berry               12/17/79     10/01/86
       Utah                John H. Allen                 08/24/83     08/23/87
       Wyoming             Harold L. Mai                 02/03/83     02/02/87
   11
       Florida (N)         N. Sanders Saule              01/01/84     12/31/87
       Georgia (M)         VACANCY (Moseley)
1

Sample Order and Model Rule, Interim Bankruptcy Rules, 11 U.S.C. (West Supp.1983)

2

Article I, Sec. 1; Article II, Sec. 1; Article III, Sec. 1 and Article I, Sec. 6 of the United States Constitution

3

The doctrine is derived from two Supreme Court cases, Benner v. Porter, 50 U.S. (9 How.) 235, 246, 13 L.Ed. 119 (1850), and Freeborn v. Smith, 69 U.S. (2 Wall.) 160, 174, 17 L.Ed. 922 (1865). ("If it comes within the category of retrospective legislation ... we find nothing in the Constitution limiting the power of Congress to amend or correct omissions in previous acts.")

4

The extension of the bankruptcy judges' terms of office during the transition period was enacted to avoid the immediate influx of "new, inexperienced judges[, which] would be detrimental to the smooth transition from the current system to the new," and "to avoid the dismissal of current experienced bankruptcy judges for purely political reasons." H.R.Rep. No. 595, 95th Cong., 1st Sess. 289 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6245

The same justifications were behind the extension provided by the 1984 Act. See 130 Cong.Rec. H7491 (daily ed. June 29, 1984) (remarks of Chairman Rodino regarding the "gap in the 1984 Act");

The conferees agreed that sitting bankruptcy judges should continue in office.

We recognized that the Supreme Court has upheld similar periods. See Glidden [Co.] v. Zdanok, 370 U.S. 530, 547 [82 S.Ct. 1459, 1471, 8 L.Ed.2d 671] (1962) (plurality opinion of Justice Harlan) ("(t)he touchstone of decision in all these cases has been the need to exercise jurisdiction then and there for the transitory period."); see also Metlakatla Indian Comm. v. Egan, 363 U.S. 555 [80 S.Ct. 1321, 4 L.Ed.2d 1397] (1960); Freeborn v. Smith, 69 U.S. 160 [17 L.Ed. 922] (185); Baker v. Morton [12 Wall. 150], 79 U.S. 150 [20 L.Ed. 262] (1871); John v. Paullin, 231 U.S. 583 [34 S.Ct. 178, 58 L.Ed. 381] (1913).

The conference report continues the existing transition court so as to allow bankruptcy judges to continue to efficiently do their work. It was the expectation and intention of the Conferees that those persons who were bankruptcy judges continue in those jobs.

and 130 Cong.Rec. S8888 (daily ed. June 29, 1984) (remarks of Chairman Thurmond):

As I am sure my colleagues are aware, our most recent extension of the existing bankruptcy system expired on June 27 of this year. Obviously, the conferees had not agreed on a new bill by that point in time. We have attempted to address this problem by including in title I a final extension of the existing system to the date of enactment of this bill. Our intent is to continue the existing bankruptcy system and its current judges....

5

E.g. "The term of office of any bankruptcy judge who was serving on June 20, 1984, and of any bankruptcy judge who is serving on the date of the enactment of this Act is extended to and shall expire on June 27, 1984." Pub.L. No. 98-325 Sec. 2 (June 20, 1984)

6

Section 114 of the 1984 Act is further evidence of Congress' intent that the Extension Acts were not to repeal the Sec. 404(b) holdover provisions of the 1978 Act. Section 114 explicitly repealed several provisions of prior law, including Sec. 404 of the 1978 Act. If it had already been repealed by implication or otherwise by the Extension Acts, there would have been no need to repeal it a second time

7

S.Rep. No. 989, 95th Cong., 2d Sess. 117 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5903