In Re: SAMI YOUSIF v. Sami Yousif; Sana Yousif; Florence Tanners, Incorporated

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0031P (6th Cir.)
File Name: 00a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In Re: S AMI YOUSIF,
Debtor.
________________________
TODD M. HALBERT ,
Plaintiff-Appellant,
v.
S AMI YOUSIF; S ANA YOUSIF;
FLORENCE TANNERS,
INCORPORATED ,
Defendants-Appellees.
;>

1
No. 98-1805
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 97-75047; 97-75048—Julian A. Cook, Jr.,
District Judge.
Argued: October 29, 1999
Decided and Filed: January 20, 2000
Before: WELLFORD, MOORE, and GILMAN, Circuit
Judges.

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2 In re Yousif No. 98-1805
_________________
COUNSEL
ARGUED: Todd M. Halbert, Southfield, Michigan, for
Appellant. John D. Hertzberg, Southfield, Michigan, for
Appellees. ON BRIEF: Todd M. Halbert, Southfield,
Michigan, for Appellant. John D. Hertzberg, Southfield,
Michigan, for Appellees.
WELLFORD, J., delivered the opinion of the court, in
which GILMAN, J., joined. MOORE, J. (pp. 13-19),
delivered a separate concurring opinion.
_________________
OPINION
_________________
HARRY W. WELLFORD, Circuit Judge. Todd M.
Halbert, a Michigan attorney representing himself on this
appeal as he did in the district court, takes appeals from
denials of his applications for attorney fees with respect to
two separate bankruptcy cases, one involving Sami and Sana
Yousif and the other involving the corporation controlled by
the Yousifs, Florence Tanners, Incorporated (“Tanners”). The
Yousifs and Tanners filed Chapter 11 bankruptcy cases and
were represented before and after these filings by Halbert.
Ultimately, after protracted proceedings, the bankruptcy court
issued an opinion denying the requested fees based on what
the court perceived as a “systematic” pattern of impropriety
on Halbert’s part, involving transfers of merchandise to the
attorney from the debtors and allegations of preferential
payments and transfers.
Debtors claim that Halbert was not qualified under
bankruptcy law and rules to serve as counsel in the Chapter
11 proceedings, and that transfers of merchandise to Halbert
had occurred during the 90-day period before the filings and
constituted preferential transfers under § 547(b) of the Code.
In one opinion of the bankruptcy court, appealed to the
No. 98-1805 In re Yousif 19
that enables a court of appeals to determine whether the
district court’s order is a final and appealable order without
having first to reach the merits of the appeal. Accordingly, I
think that we should adopt “the prevailing view that courts of
appeals lack jurisdiction over appeals from orders of district
courts remanding for significant further proceedings in
bankruptcy courts.” Dicola v. American Steamship Owners
Mut. Protection and Indem. Ass’n, Inc. (In re Prudential
Lines, Inc.), 59 F.3d 327, 331 (2d Cir. 1995) (quotation
omitted); see also In re Lopez, 116 F.3d at 1192 (“[A]
decision by the district court on appeal remanding the
bankruptcy court’s decision for further proceedings in the
bankruptcy court is not final, and so is not appealable to this
court, unless the further proceedings contemplated are of a
purely ministerial character.”). In the present case, the district
court affirmed much of the bankruptcy court’s decision, but
it remanded the case to the bankruptcy court so that the
bankruptcy court could make further factual findings to
support its conclusion that Halbert violated the disclosure
requirements of § 329(a) and Bankruptcy Rule 2016(b).
Halbert, 225 B.R. at 354-58. Because the district court’s
order remanding the case for further factual findings
contemplates significant further proceedings in the
bankruptcy court, I do not believe that the district court’s
order should properly have qualified as a final order within
the meaning of § 158(d), and thus the district court could not
properly certify that it had issued a final judgment of a
separate claim pursuant to Rule 54(b).
I concur in the judgment of the majority because I believe
that we do not have jurisdiction to review the district court’s
order denying Halbert’s fee application in the Tanners’
bankruptcy case.

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18 In re Yousif No. 98-1805
from Tanners within the ninety-day preference period, Halbert
became ineligible to serve as its attorney, at least in the
absence of curative measures which did not occur here.”
Halbert v. Yousif, 225 B.R. 336, 344 (E.D. Mich. 1998). The
district court, however, also vacated the bankruptcy court’s
determination that Halbert had violated the disclosure
requirements set forth in § 329(a) and Bankruptcy Rule
2016(b), remanding this issue to the bankruptcy court for
further factual findings. Halbert, 225 B.R. at 354-58.
If we were to decide on appeal that Halbert’s fee
application was properly denied on grounds that he was not a
disinterested person within the meaning of 11 U.S.C.
§ 327(a), then the issue involving Halbert’s compliance with
the disclosure requirements of § 329(a) and Bankruptcy Rule
2016(b), like the issue involving the fraudulent release in
Gardner, becomes non-dispositive. See, e.g., Halbert, 225
B.R. at 356-57 (“Violations of the disclosure and
disinterestedness rules are independent of each other,
although the remedies for each are similar.”). If, on the other
hand, we were to decide to reverse the bankruptcy court’s
determination that Halbert was not a disinterested person,
then the issue involving the disclosure requirements of
§ 329(a) and Bankruptcy Rule 2016(b) would become a
“central, determinative issue underlying [the] dispute.” In re
Gardner, 810 F.2d at 92. This example illustrates the
concerns that I have about the approach that we articulated in
Gardner: this approach may require the court of appeals to
decide the merits of the issue that has been decided by the
district court before it can determine whether the issue that
has been remanded by the district court for further factual
findings by the bankruptcy court is central to the outcome of
the case.
If we were to follow the approach that this court articulated
in Gardner, then I believe that we would be forced to reach
the merits of the district court’s decision before we could
determine whether the district court’s order denying Halbert’s
fee application in the Tanners case is a final and appealable
order. I believe, however, that we should adopt an approach
No. 98-1805 In re Yousif 3
district court and essentially affirmed, at least in part, the
former found that some antecedent debt was satisfied by the
transfer at issue, disqualifying Halbert. We have found that
there is a serious jurisdictional question in these cases
consolidated for appeal and asked the parties to address the
issue at oral argument. See Millers Cove Energy Co. v.
Moore (In re Millers Cove Energy Co.), 128 F.3d 449, 450
(6th Cir. 1997) (“‘Subject matter jurisdiction cannot be
conferred on federal courts by consent of the parties. The
existence of subject matter jurisdiction, moreover, is an issue
that may be raised at any time, by any party, or even sua
sponte by the court itself.’”) (quoting Ford v. Hamilton Invs.,
Inc., 29 F.3d 255, 257 (6th Cir. 1994)).
We have jurisdiction to entertain orders and judgments that
effectively and finally dispose of all claims presented to the
district court. This requirement is referred to as the final
judgment rule, embodied principally in 28 U.S.C. § 1291:
“The courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts. . . .” In the
dispute before us, each bankruptcy case retained its separate
identity, although the appeals from the separate orders or
judgments were consolidated for purposes of briefing and
argument; the cases of the Yousifs and Tanners were treated
separately by the bankruptcy court and subsequently by the
district court.
I. THE YOUSIF APPEAL
The district court made the following findings pertinent to
the Yousifs’ bankruptcy appeal:
Halbert submits that this Court should enter a summary
judgment in his favor and against the Yousifs because the
Bankruptcy Court did not cite any law and found no facts
upon which to support its denial of his request for
attorney fees relating to services rendered in the Yousifs’
bankruptcy. This Court agrees. All of his deficiencies,
which were the subject of the two opinions by the
Bankruptcy Court, relate to his conduct in the Tanners
bankruptcy proceeding. In fact, there is no discussion or

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4 In re Yousif No. 98-1805
evaluation of Halbert’s compliance or noncompliance
with his disclosure and disinterestedness duties in the
Yousif case. 39
Therefore, the entry of a summary judgment by the
Bankruptcy Court in favor of the Yousifs is vacated.
Further, the issue of whether a summary judgment should
be entered on Halbert’s application for fees in the
Yousifs’ case is remanded for further consideration by
the Bankruptcy Court.
39 Although the Bankruptcy Court did recite the Rule 2016(b)
disclosures made by Halbert in the Yousif case, In re Florence
Tanners, 209 B.R. at 442, it did not make any factual findings or
legal conclusions that are pertinent to those disclosures.
(emphasis added). This judgment by the district court
effectuating a remand to the bankruptcy court in the Yousifs’
case is not a final judgment and is therefore not appealable;
the case was “vacated and remanded” to the bankruptcy court
for necessary factual findings and/or legal conclusions. See,
e.g., Marlow v. Rollins Cotton Co., 146 F.3d 420, 422 (6th
Cir. 1998) (“A decision is final if it ‘ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.’”) (quoting Catlin v. United States, 324 U.S. 229,
233 (1945)).
II. THE TANNERS APPEAL
We have similar reservations concerning jurisdiction over
the appeal in the Tanners case. The district court summarized
the decision of the bankruptcy court and indicated its general
approval of its actions. The district court concluded that the
bankruptcy court correctly determined that Halbert unlawfully
withdrew funds from a $26,600 retainer fee on several
occasions “until it was fully depleted without filing
supplemental disclosures or seeking Court approval” and
thereby violated Bankruptcy Rule 2016(b) and 11 U.S.C.
§ 330. The district court held that the bankruptcy court
correctly determined that Halbert violated these and other
fiduciary obligations imposed on him by bankruptcy law and
No. 98-1805 In re Yousif 17
that the debtor had executed in favor of the insurance
company was fraudulent. The bankruptcy court determined
that the insurance policy did not cover the accident, and it
held that the release that the debtor had executed in favor of
the insurance company was not fraudulent. On appeal, the
district court affirmed the bankruptcy court’s determination
that the policy did not cover the accident, but it remanded the
issue involving the release to the bankruptcy court for further
factual determinations.
We determined that the district court’s order was a final and
appealable order because the “legal issue concerning the
interpretation of the insurance policy [was] the central,
determinative issue underlying [the] dispute.” Id. at 92. Even
though the district court’s “remand directed further factual
determinations on a question of whether the release was
fraudulent,” the court explained that this “question becomes
academic if [the insurance company] were found not liable
under the insurance policy at issue.” Id. (emphasis in
original). Thus, after our decision in Gardner, an appeal of a
district court order reviewing a bankruptcy court decision
would appear to qualify as a final and appealable order so
long as the district court does not “remand[ ] the case for a
factual determination on an issue central to the case.” Id. at
91 (emphasis in original).
The court’s decision in Gardner is directly analogous to the
present case. Here, the bankruptcy court denied Halbert’s fee
application in the Tanners’ bankruptcy case because it
determined that he had received undisclosed merchandise
transfers during the ninety-day preference period and
therefore did not qualify as a disinterested person within the
meaning of 11 U.S.C. § 327(a). The bankruptcy court also
determined that Halbert had violated the disclosure
requirements set forth in 11 U.S.C. § 329(a) and Bankruptcy
Rule 2016(b). The district court affirmed the bankruptcy
court’s denial of Halbert’s fee application on grounds that
Halbert did not qualify as a disinterested person pursuant to
§ 327(a), explaining that “[t]he Bankruptcy Court correctly
determined that, as a result of receiving transfers of value

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– the Bankruptcy Rule that incorporates Federal Rule of Civil
Procedure 54(b) – applies to contested matters “unless the
court otherwise directs”). Thus, I concur in the judgment of
the majority and conclude that we do not have jurisdiction to
hear Halbert’s appeal in the Tanners’ bankruptcy case because
the district court did not issue a certification pursuant to Rule
54(b) as required by our precedents.
This circuit’s current approach, which asks whether a
district court has complied with the Rule 54(b) certification
requirements when a district court has affirmed part of the
bankruptcy court’s decision and has remanded other parts of
the case to the bankruptcy court for further proceedings, is
simply a way of letting the district court initially decide
whether the partial judgment is final. See Brotherton v.
Cleveland, 173 F.3d 552, 559 (6th Cir. 1999) (“By its terms,
Rule 54(b) applies only to final judgments.”); General
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026-27
(6th Cir. 1994) (“The first step in certification, entry of partial
final judgment, is satisfied where some decision made by the
district court ultimately disposes of one or more but fewer
than all of the claims or parties in a multi-claim/multi-party
action.”). Indeed, Rule 54(b) certification is only appropriate
if the district court’s order affirming the bankruptcy court’s
determination of a claim but remanding certain issues to the
bankruptcy court for further factual findings qualifies as a
final and appealable order.
This circuit has addressed the underlying question of
finality on one occasion. See Breyfogle v. Grange Mut. Cas.
Co. (In re Gardner), 810 F.2d 87 (6th Cir. 1986). In Gardner,
this court determined that it had jurisdiction to hear a
bankruptcy appeal even though a district court had reversed
and remanded part of the bankruptcy court’s decision. The
plaintiffs in Gardner sued a debtor and his insurance
company for the personal injuries that they sustained in an
automobile accident involving the debtor. The plaintiffs
sought damages from the debtor’s insurance company on
grounds that the insurance policy at issue covered the
automobile accident. The plaintiffs also alleged that a release
No. 98-1805 In re Yousif 5
that it properly denied his fee applications as sanctions. The
district court also found sufficient evidence supporting the
bankruptcy court’s finding that Halbert violated Bankruptcy
Rule 2014(a) by failing to disclose that he had received
merchandise transfers from Tanners within ninety days of the
Yousifs’ and Tanners’ bankruptcy filings, thus disqualifying
himself under 11 U.S.C. § 327(a) to serve as Tanners’
counsel.
After approval of the bankruptcy court’s decision to deny
Halbert’s fees on a number of bases, the district court added
this observation calling for the vacating of at least a part of
the bankruptcy court’s determination:
The Court, after noting that “[c]learly, there was an
agreement that Tanners would pay for those services, but
Halbert did not disclose such an agreement,” concluded
that Halbert’s failure to disclose this agreement violated
his disclosure duties under § 329(a) and Rule 2016(b).
Id.
Although it is undoubtedly plausible to deduce that a
fee agreement existed between Halbert and Tanners for
these services in contemplation of bankruptcy, there is no
direct information relating to any such agreement in any
of the material upon which the Bankruptcy Court relied.
Thus, there is no extrinsic evidence from which the
Bankruptcy Court could have found that this agreement
existed, the method of payment, or the date on which it
was mutually accepted by, and binding upon, the parties.
Consequently, the applicable standards of review for the
Appellees’ dispositive motion preclude the Bankruptcy
court from having found sufficient material facts from
which the existence and terms of the parties’ agreement
could be determined.
Strict compliance with the directive to draw all
reasonable inferences in favor of Halbert should have
resulted in the Bankruptcy Court making no finding
about such an agreement. Apart from whether this
directive required the assumption that Halbert agreed to

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6 In re Yousif No. 98-1805
work on the bankruptcy pro bono, about which this Court
expresses no opinion, the Bankruptcy Court improperly
assumed that any such agreement fell within the bounds
of § 329(a) and Rule 2016(b). This conclusion was
reached even though Halbert presented uncontested
extrinsic evidence which indicated that his only fee
agreement with Tanners was achieved on September 1,
1993, more than one year before its petition was filed.
Indeed, Halbert contends on appeal that this fee
agreement, which provided for an hourly fee of $165, is
the only one relating to the bankruptcy, a claim which is
undisputed by the Appellees.
While the Court expresses no opinion as to whether
Halbert was under a duty to disclose this fee agreement,
it is apparent that the Bankruptcy Court drew inferences
against him based on an incomplete understanding of the
facts and the parties’ positions on this issue. The
Bankruptcy Court also failed to set forth on the record
the basis for this alleged violation while at the same time
being unable to establish the date on which the alleged
agreement was entered. Cf. In the Matter of Prudhomme,
43 F.3d 1000, 1002-03 (5th Cir. 1995) (court can order
disgorgement of fee paid more than one year before filing
of petition because one year limitation period in § 329(a)
is rebuttable presumption that any compensation paid
before pre-petition year period is not in contemplation of
bankruptcy and consequently § 329(a) does “not provide
a limitations period beyond which the court cannot
reach.”). Therefore, the findings and conclusions of the
Bankruptcy Court on this issue must be vacated.
. . . .
[T]he Bankruptcy Court gives no indication of having
evaluated his argument that the November 19, 1994
merchandise transfer, as well as other merchandise
deliveries, could be applied exclusively to non-
bankruptcy related services that were provided before the
petitions were filed. Moreover, the Bankruptcy Court
No. 98-1805 In re Yousif 15
3I do not agree with the majority’s decision to “view this appeal as
an adversary proceeding to determine Halbert’s eligibility for attorney’s
fees and liability for sanctions and apply Federal Rules of Bankruptcy
Procedure 7054 and 7001(1).”
described as “full blown federal lawsuits within the larger
bankruptcy case,” and are initiated when a party files a
complaint with the bankruptcy court. Section 1120(A)(1)
Comm. of Unsecured Creditors v. Interfirst Bank Dallas,
N.A.(In re Wood and Locker, Inc.), 868 F.2d 139, 142 (5th
Cir. 1989) (quotation omitted). Rule 54(b) applies to
adversary proceedings that are brought within the context of
a larger bankruptcy proceeding through Bankruptcy Rule
7054, which incorporates Rule 54(b). In re Millers Cove
Energy Co., 128 F.3d at 451.
In the Tanners’ bankruptcy case, Halbert filed an
application with the bankruptcy court for the payment of
attorney fees, and Tanners responded by filing an objection to
his fee application. I do not believe that these proceedings
qualify as adversary proceedings pursuant to Bankruptcy Rule
7001,3 see, e.g., In re Chambers, 140 B.R. 233, 239 (N.D. Ill.
1992) (“The court agrees with the bankruptcy court’s finding
that the Rule 7001 does not govern requests for attorneys
fees.”); 10 LAWRENCE P. KING , C OLLIER ON BANKRUPTCY
¶ 9014.01 (15th ed. 1998) (explaining that “contested
applications for the payment of professional fees” are
“contested matters,” which “do not qualify as adversary
proceedings because they are not defined as such by Rule
7001”); instead, I believe that this case is more properly
characterized as a contested matter. See FED . R. BANKR. P.
9014.
Nevertheless, I believe that consistent with our precedents
the district court must issue a certification pursuant to Rule
54(b) before Halbert may appeal the district court’s order
affirming the bankruptcy court’s denial of his fee application
because the Bankruptcy Rules state that the Rule 54(b)
certification requirements apply to contested matters. See
FED . R. BANKR. P. 9014 (stating that Bankruptcy Rule 7054

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14 In re Yousif No. 98-1805
2Bankruptcy Rule 7001 sets forth those proceedings that qualify as
adversary proceedings: An adversary proceeding includes “a proceeding
to recover money or property, other than a proceeding to compel the
debtor to deliver property to the trustee, or a proceeding under § 554(b)
or § 725 of the Code, Rule 2017, or Rule 6002.”
appealable to this court, unless the further proceedings
contemplated are of a purely ministerial character.”), cert.
denied, 522 U.S. 1014 (1997), with Official Comm. of
Unsecured Creditors of Life Serv. Sys., Inc. v. Westmoreland
County MH/MR, 183 F.3d 273 (3rd Cir. 1999) (holding that
an appeal involving a district court order remanding part of a
case to the bankruptcy court for further proceedings is final
and appealable if the policy considerations underlying the
bankruptcy proceedings would be furthered by an immediate
appeal).
This circuit has adopted a unique approach for determining
whether an appeal from a judgment by a district court
remanding a case to the bankruptcy court for further
proceedings is a final and appealable order. See In re Millers
Cove Energy Co., 128 F.3d at 450-52; Seor, Inc. v. Textron
Oil Corp. (In re Frederick Petroleum Corp.), 912 F.2d at 853-
54. In an attempt to “establish[ ] a much-needed, bright-line
test for determining finality [and] providing certainty for
litigants,” we have held that a bankruptcy appeal is not final
unless the district court complies with the certification
requirement of Federal Rule of Civil Procedure 54(b). In re
Frederick Petroleum Corp., 912 F.2d 850, 853-54 (6th Cir.
1990); see also In re Millers Cove Energy Co., 128 F.3d at
451-52. As the court in Millers Cove explained, “In the
absence of certification under Rule 54(b) as to the finality of
a partial disposition by the district court in a bankruptcy
proceeding, any partial disposition is deemed non-final for
purposes of appeal.” Id. at 452.
The court in Millers Cove, however, was careful to point
out that the bankruptcy dispute at issue in the case was
brought as an adversary proceeding pursuant to Bankruptcy
Rule 7001.2 Id. at 451-52. Adversary proceedings have been
No. 98-1805 In re Yousif 7
does not appear to have addressed Tanners’ argument
that all of the merchandise transfers to Halbert were in
payment of pre-1994 fee obligations.
As a consequence, it appears that the Bankruptcy Court
did not evaluate this issue in a light most favorable to
Halbert. Hence, its findings and conclusions with regard
to this matter must be vacated.
. . . .
The Bankruptcy Court held that Halbert violated his
disclosure duties under Rule 2016(b) by not revealing the
receipt of six post-confirmation fees from Tanners,
totaling $51,868.92.
. . . .
. . . [T]he record on this issue is insufficient and, thus,
it precludes any meaningful judicial review of the
contested issue.
. . . .
For these reasons, the findings and conclusions of the
Bankruptcy Court on this issue are vacated.
(footnotes omitted). Despite vacating the bankruptcy court’s
opinion and judgment in several particulars as above-related,
the district court proceeded to find that “the Bankruptcy
Court’s denial of Halbert’s fee application in the Tanners’
case was fully warranted.”
The judgment, however, concluded:
The denial by the Bankruptcy Court of Halbert’s fee
application in the Tanners’ bankruptcy case is affirmed,
although certain findings of fact and conclusions of law
upon which the holding by the Bankruptcy Court was
based are vacated and remanded to the Bankruptcy
Court.

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8 In re Yousif No. 98-1805
(emphasis added). Under the circumstances, although the
district court has noted affirmance of the bankruptcy court in
the Tanners case in a number of aspects, we confess that we
cannot determine, due to what we perceive are, at best,
ambiguities in the lengthy decision of the district court,
whether there has been rendered a final judgment within the
meaning of § 1291 in the Tanners case. “Certain findings . . .
upon which the holding by the Bankruptcy Court was based”
were “vacated and remanded,” and are relevant to the issues
presented in this appeal. “If . . . the district court order
remands the case for a factual determination on an issue
central to the case, the district court order is determined not
to be appealable because the case cannot be resolved properly
until the appropriate fact-finder, the bankruptcy court, makes
necessary factual findings.” Breyfogle v. Grange Mutual
Casualty (In re Gardner), 810 F.2d 87, 91-92 (6th Cir. 1987).
Because the bankruptcy court serves as an “adjunct” to the
district court, “we view all the proceedings in this action,
whether in the Bankruptcy Court or the District Court as one
proceeding in bankruptcy.” Seon, Inc. v. Textron Oil Corp.
(In re Frederick Petroleum Corp.), 912 F.2d 850, 853 (6th
Cir. 1990). Thus, we view this appeal as an adversary
proceeding to determine Halbert’s eligibility for attorney’s
fees and liability for sanctions and apply Federal Rules of
Bankruptcy Procedure 7054 and 7001(1) and Fed. R. Civ. P.
54(6). See, id. at 853-54; Millers Cove Energy Co. v. Moore
(In re Millers Cove Energy Co.), 128 F.3d 449 (6th Cir.
1997). Rule 54(b) provides that:
(b) Judgment Upon Multiple Claims or Involving
Multiple Parties. When more than one claim for relief
is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and
upon an express direction for the entry of judgment. In
the absence of such determination and direction, any
order or other form of decision, however designated,
No. 98-1805 In re Yousif 13
1I write separately only with respect to Part II of the majority’s
opinion, which addresses the part of the district court’s order that affirms
the bankruptcy court’s denial of “Halbert’s fee application in the Tanners’
bankruptcy case,” and vacates and remands to the bankruptcy court
“certain findings of fact and conclusions of law upon which the holding
by the Bankruptcy Court was based.” Halbert v. Yousif, 225 B.R. 336,
360 (E.D. Mich. 1998).
_____________________
CONCURRENCE
_____________________
KAREN NELSON MOORE, Circuit Judge, concurring. I
join Part I of the majority’s opinion because I agree that the
district court’s order remanding Halbert’s fee application in
the Yousifs’ bankruptcy case is not a final and appealable
order. I concur in the judgment of the majority with respect
to Part II of its opinion, but I write separately to clarify this
circuit’s approach for determining “the finality of district
court orders remanding a case for further proceedings in
bankruptcy court.” Millers Cove Energy Co. v. Moore (In re
Millers Cove Energy Co.), 128 F.3d 449, 451 (6th Cir.
1997).1
We have jurisdiction to review only the “final decisions,
judgments, orders, and decrees” of a district court when a
district court has acted in an appellate capacity and has
reviewed a bankruptcy court decision. 28 U.S.C. § 158(d);
see also In re Millers Cove Energy Co., 128 F.3d at 451.
Courts of appeals, however, have had a difficult time agreeing
on exactly what constitutes a final decision when reviewing
an appeal of a district court order reviewing a bankruptcy
court decision – particularly when a district court has affirmed
part of the bankruptcy court’s decision and has remanded
other parts of the case to the bankruptcy court for further
proceedings. Compare In re Lopez, 116 F.3d 1191, 1192 (7th
Cir.) (holding that “a decision by the district court on appeal
remanding the bankruptcy court’s decision for further
proceedings in the bankruptcy court is not final, and so is not

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12 In re Yousif No. 98-1805
been met; first, the district court must “clearly
evidence[] its intent that the opinion . . . represent[ed]
the final decision in the case;” second, the judgment
must have been “properly recorded on the clerk’s
docket;” and third, “the appellee from the district court
[must not have] objected to perfecting the appeal from
that order.”
Whittington v. Milby, 928 F.2d 188, 192 (6th Cir.), cert.
denied, 512 U.S. 883 (1991) (quoting Bankers Trust v. Mallis,
435 U.S. 381, 387 (1978)).
In this case, a remand for entry of a separate judgment
while retaining jurisdiction over the appeal would serve no
purpose if the judgment was not a final appealable order.
Likewise, even if the district court had entered a separate
document, we still would need to inquire into its finality. See
Bankers Trust, 435 U.S. at 385-86 n.6 (“Even if a separate
judgment is filed, the courts of appeals must still determine
whether the district court intended the judgment to represent
the final decision in the case.”); see also Green v. Nevers, No.
98-1695, 1999 WL 1044239 *n.2 (6th Cir. Nov. 19, 1999).
Accordingly, we find that we clearly have no jurisdiction in
the Yousifs’ appeal. We must also decline jurisdiction in the
attempted Tanners’ appeal for the reasons indicated because
it is premature.
No. 98-1805 In re Yousif 9
which adjudicates fewer than all the claims or other
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision
at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the parties.
See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438
(1956) (“[Rule 54(b)] does not supersede any statute
controlling appellate jurisdiction. It scrupulously recognizes
the statutory requirement of a ‘final decision’ under § 1291 as
a basic requirement for an appeal to the court of appeals.”).
The district court has made no determination that “there is
no just reason for delay” on a final judgment entered as “to
one or more but fewer than all the claims or parties.” No
Rule 54(b) certification was issued or requested. “In the
absence of certification under Rule 54(b) as to the finality of
a partial disposition by the district court in a bankruptcy
proceeding, any partial disposition is deemed non-final for
purposes of appeal.” In re Millers Cove Energy Co., 128 F.3d
at 452.
We therefore lack subject matter jurisdiction under 28
U.S.C. § 158(d) and must dismiss the appeal. See id.
We pass to another matter of concern on the issue of
jurisdiction--Halbert’s notice of appeal, which is set out
below:

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10 In re Yousif No. 98-1805
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TODD M. HALBERT, C O N S O L I D A T E D
APPEALS
Appellant, Case Nos. 97-CV-75047
97-CV-75048
v. Hon. Julian Abele Cook, Jr.
SAMI YOUSIF, SANA YOUSIF, and
FLORENCE TANNERS, INC.,
Appellees.
____________________________________/
NOTICE OF APPEAL
Todd M. Halbert (“Appellant”) appeals as a matter of
right from that certain Order entered by the District Court
on July 2, 1998.
The parties to the Order appealed from and the names
of their respective attorneys are as follows:
Sami Yousif and Sana Yousif: C. William Garratt,
Esq.
Florence Tanners, Inc.: C. William Garratt, Esq.
___________________________
TODD M. HALBERT (P33488)
Counsel for Appellant
24359 Northwestern Hwy., #250
Southfield, MI 48075
(243) 356-6204
DATED: July 10, 1998
No. 98-1805 In re Yousif 11
The notice of appeal may be insufficient because, among
other things, it does not name the court to which appeal is
taken. See, however, Dillon v. United States, 184 F.3d 556
(6th Cir. 1999) (en banc) (holding that “where only one
avenue of appeal exists, [Fed. R. App. P.] 3(c)(1)(C) is
satisfied even if the notice of appeal does not name the
appellate court”). The notice makes no reference to a separate
judgment entry that appears in the joint appendix in the
Tanners case. The only reference is to the lengthy “Order”
from which we have cited a number of excerpts. The “Order”
is really an opinion dealing with two separate cases, one of
which we have found to be clearly not appealable.
Furthermore, the record does not reflect that there was a
separate judgment entry, pursuant to Fed. R. Civ. P. 58, which
mandates entry of a separate document. This requirement
may be waived, however, under certain circumstances. See
Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). In the
present case, the district court entered its order on the docket
sheet, and the defendants did not object to perfecting the
appeal from that order. However, because it remanded the
Yousifs case in its entirety and the Tanners case in part for
further findings, it is certainly arguable that the district court
did not evidence clear intent that the opinion be a final
decision in the case and thus did not meet the requirements
for waiver.
In certain cases “although the absence of a separate
document does not foreclose appellate review, . . . ‘the
question raised by [the] appeal can be more fully considered
if the decision below is made explicit in a judgment.’”
Beukema’s Petroleum Co. v. Admiral Petroleum Co., 613
F.2d 626, 628-29 (6th Cir. 1979) (holding that Bankers Trust
applied to appeals from preliminary injunctions) (quoting
Turner v. Air Transport Lodge 1894, 585 F.2d 1180 (2d Cir.),
cert. denied, 442 U.S. 919 (1978)).
Following Bankers Trust, this court held that
[T]he parties to an appeal may waive the separate
judgment requirement where three conditions have

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