In Re: Herman

Background

Kathleen Herman, the debtor and appellant, filed a petition for a writ of mandamus while representing herself. A writ of mandamus is an extraordinary court order requiring a government officer or court to perform a legally required duty. Herman sought an order directing Bankruptcy Judge Cecilia Morris to sign or reject Herman’s proposed order to show cause concerning a stay of the bankruptcy case during an appeal.

The district court stated that, under Federal Rule of Bankruptcy Procedure 8007(a)(1), a party seeking a stay during an appeal must initially apply in the Bankruptcy Court. The opinion refers to two earlier district court orders addressing that requirement. Herman said that a Bankruptcy Court clerk told her Judge Morris had not signed the proposed order because the appeal had removed the Bankruptcy Court’s jurisdiction. Herman also said the district court would not address the matter because the Bankruptcy Court had not issued anything in writing.

Herman’s supporting affidavit described the situation as an impasse. She asserted that the Bankruptcy Court’s decision to sign or reject the proposed order was a ministerial duty—an action so clearly required that the official has no discretion about whether to perform it. She also described allegations concerning payments under a Chapter 13 plan, fees, and dismissal of the bankruptcy petition. The district court did not decide those underlying bankruptcy issues.

Legal standard

The court explained that federal district courts have authority under 28 U.S.C. § 1361 to consider an action seeking to compel an officer or employee of the United States, or a federal agency, to perform a duty owed to the petitioner. Mandamus is a drastic remedy reserved for extraordinary circumstances. A petitioner must show that no other adequate means can provide the requested relief, that the right to the relief is clear and indisputable, and that the relief is appropriate under the circumstances.

Ruling

The court denied the petition for a writ of mandamus. It concluded that Herman had not pleaded facts or presented arguments showing a clear and indisputable right to an order requiring the Bankruptcy Court to decide the proposed order to show cause. The court stated that Bankruptcy Court decisions concerning management of its docket are discretionary. It also stated that the decision whether to grant or deny a stay during an appeal is within the Bankruptcy Court’s discretion.

Judge Nelson S. Roman directed the Clerk of Court to terminate the motion at ECF No. 23, mail a copy of the order to Herman, and show service on the docket.