Dissent Written About In re BP RE, L.P., No. 12-51270 (5th Cir. Fed. 28, 2014)

This is not a decision by the Fifth Circuit, but rather a dissent written by Judge Higginson and joined by Judges Stewart, Jolly, Davis, Dennis and Graves.  They are dissenting from the Court’s decision not to take a previous matter back up en banc.  The prior decision was decided on November 1, 2013. (Click here for full summary) where the court determined that a bankruptcy court lacks the Constitutional authority to enter a final judgment on a non-core matter, even if the parties’ consent to the bankruptcy court’s entry of a final judgment.

The dissent recognizes that the issue is currently before the Supreme Court in the Bellingham case.  The dissent noted, however, that the Fifth Circuit should address how these issues might affect a magistrate judge’s ability to enter a final judgment.  The dissent noted that in Technical Automation Services Corporation v. Liberty Surplus Insurance Corp., 673 F.3d 399 (5th Cir. 2012) the court held that a magistrate may enter final judgments with the parties’ consent.  The dissent suggested that the BP RE panel decision placed doubt on whether that remains the law and that the court should have taken the case up en banc to address that issue.

Technical Automation Services Corporation v. Liberty Surplus Insurance Corp, en banc, insolvency-insights