Gowan v. Westford Asset Management LLC et al

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: 	:
:
DREIER LLP, 	: 	Chapter 11
: 	Case No. 08-15051 (SMB)
Debtor. 	:
:
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SHEILA M. GOWAN, Post-Confirmation Plan 	:
Administrator for the Estate of Dreier LLP, 	:
:
Plaintiff, 	:
:
–against– 	: 	Adv. Proc. No. 10-5447
:
WESTFORD ASSET MANAGEMENT LLC, 	:
et al., 	:
:
:
Defendants. 	:
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MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S
MOTION FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM
The plaintiff has moved for a writ of habeas corpus ad testificandum to compel
the production of Marc S. Dreier, who is incarcerated in the Federal Correctional
Institution in Sandstone, Minnesota, to testify at the trial of this adversary proceeding.
The trial is scheduled to begin in October 2014. The defendants have not objected, but I
conclude that I lack the statutory authority to issue the writ.
The authority to issue a writ of habeas corpus is contained in 28 U.S.C. § 2241(a)
which states in relevant part:
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Writs of habeas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuit judge within their respective
jurisdictions.
The statute specifically empowers Supreme Court justices, circuit judges and
district judges (i.e., Article III judges) to issue the writ but omits any reference to
bankruptcy judges. For this reason, the majority of the few cases to consider the issue
have concluded that a bankruptcy judge lacks the statutory authority to issue a writ of
habeas corpus. E.g., In re Kluever, 373 B.R. 163, 164 (Bankr. M.D. Fla. 2007) (“Section
2241(a) does not imbue bankruptcy courts with the authority to issue writs of habeas
corpus. Accordingly, bankruptcy courts lack such authority.”); Womack v. Mays (In re
Womack), 253 B.R. 247, 248 n.2 (Bankr. E.D. Ark. 2000) (“[T]his court does not have
the authority to issue a writ of habeas corpus. . . . only the ‘Supreme Court, any justice
therefor, the district courts and any circuit judge within their respective jurisdictions,’ has
the authority to issue such a writ.” (citation omitted) (quoting 28 U.S.C. § 2241));
Cornelious v. Bishop (In re Cornelious), 214 B.R. 588, 590 (Bankr. E.D. Ark. 1997)
(“The modern authority for release from incarceration is found in 28 U.S.C. § 2241, et
seq., under which only the ‘Supreme Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions,’ has authority to issue such a writ.”
(quoting 28 U.S.C. § 2241)); see Ownby v. Cohen, No. 3:02CV00034, 2002 WL
1877519, at *5 (W.D. Va. Aug. 15, 2002) (discussing the “questionable statutory
authority of bankruptcy courts to issue writs of habeas corpus”). 1
1 	The plaintiff also makes passing reference to the Amended Standing Order of Reference (M10-
468) as a basis for jurisdiction. However, it is far from clear that the District Court can refer its statutory
authority to issue a writ of habeas corpus to the Bankruptcy Court, even if it relates to a proceeding within
the jurisdiction of the Bankruptcy Court. As discussed at the end of this decision, the better approach is to
seek the writ directly from the District Court.
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This point is further strengthened by the repeal of a provision in the Bankruptcy
Reform Act of 1978 granting bankruptcy courts jurisdiction to issue habeas corpus writs
in limited circumstances. 28 U.S.C. § 2256; Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L. No. 98-353, § 113 (amending the effective date of § 2256
to read “shall not be effective”). The provision would have authorized bankruptcy judges
to issue habeas corpus writs either (i) to bring a person before the court for examination,
to testify, or to perform a duty imposed on the person by title 11 or (ii) to release a debtor
from custody if he had been arrested through a civil action to collect a debt. 28 U.S.C.
§ 2256; see Salazar v. McCormick (In re Crestview Funeral Home, Inc.), No. NM-02-
044, 2002 WL 31793997, at *2-3 (B.A.P. 10th Cir. Dec. 13, 2002) (discussing the history
of § 2256). Courts have interpreted the enactment and subsequent repeal of § 2256 as
evidence that Congress did not intend to authorize bankruptcy courts to issue habeas
corpus writs. In re Smith, No. 05-2079, 2007 WL 1199253, at *1 (Bankr. M.D.N.C. Apr.
19, 2007) (“An examination of another statute, 28 U.S.C. § 2256, casts further doubt on
the ability of a bankruptcy court to issue such a writ.”); Futch v. Roberts (In re Roberts),
No. 06-04028, 2007 WL 7022207, at * 2 (Bankr. S.D. Ga. Feb. 8, 2007) (“The fact that
Congress refused to allow 28 U.S.C. § 2256 to become law has led several courts to
conclude that bankruptcy courts lack power to issue writs of habeas corpus.”); In re
Cornelious, 214 B.R. at 590 (“The statute which permitted the bankruptcy court to issue a
writ of habeas corpus, 28 U.S.C. § 2256, never took effect. Accordingly, this Court does
not have the power to order the release of the debtor.”); Griffith v. Oles (In re Hipp, Inc.),
895 F.2d 1503, 1517 (5th Cir. 1990) (“The power of bankruptcy courts . . . to issue writs
of habeas corpus, 28 U.S.C. § 2256, [was] also repealed.”); see In re Bona, 124 B.R. 11,
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14 (S.D.N.Y. 1991) (“In light of that repeal [of § 2256], the authority of bankruptcy
courts to grant habeas corpus writs is unclear.”).
The plaintiff cites two cases in support of her contention that this Court can issue
the writ. In Surabian v. Picard (In re Bernard L. Madoff Inv. Sec. LLC), No. 13 Civ.
4332 (ALC), 2014 WL 1302660 (S.D.N.Y. Mar. 31, 2014), however, neither the
Bankruptcy Court nor the District Court considered the issue of the Bankruptcy Court’s
authority. Instead, the Bankruptcy Court declined to issue the writ on the merits and the
District Court affirmed that determination.. Id. at *6. Thus, the decision does not support
the plaintiff’s position.
Barlow v. McGee (In re Barlow), No. DK 08-09465, 2010 WL 3831387, at *1
(Bankr. W.D. Mich. Sept. 20, 2010), provides stronger support for the plaintiff’s
jurisdictional argument. There, the Bankruptcy Court drew a distinction between a writ
of habeas corpus to effect a prisoner’s release and a writ of habeas corpus ad
testificandum, which calls for the temporary production of the prisoner to give testimony,
and concluded that it could issue the latter type of writ. Id. at *1. The Bankruptcy Court
nevertheless rejected the application for the writ on the merits, and added that “if the
court were inclined to grant to writ, it would consider making a report and
recommendation to the United States District Court” rather than directly issuing the
order. Id. at n.1.
While I appreciate the distinction between a writ of habeas corpus that releases a
prisoner from custody and one that simply requires his production under appropriate
security measures for the purpose of testifying, the statute does not make the distinction.
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Furthermore, neither Bankruptcy Code § 105(a) nor 28 U.S.C. § 1651 permits a
Bankruptcy Court to issue the writ because “a statute’s general permission to take actions
of a certain type must yield to a specific prohibition found elsewhere.” Law v. Siegel,
134 S. Ct. 1188, 1194 (2014) (discussing Bankruptcy Code § 105(a)); see Bryan v.
Rainwater, 254 B.R. 273, 276 (N.D. Ala. 2000) (vacating bankruptcy court order that
relied on 11 U.S.C. § 105(a) to issue writ of habeas corpus in light of clear language in
28 U.S.C. § 2241).
Finally, the plaintiff notes that the District Court adopted Local Civil Rule
72.1(c), which authorizes magistrate judges to issue, inter alia, writs of habeas corpus ad
testificandum, and implies that the rule supports her jurisdictional argument. First, the
rule does not apply to bankruptcy judges. Second, the fact that the District Court adopted
such a rule implies its view that magistrate judges otherwise lacked the authority to issue
writs of habeas corpus ad testificandum.
The proper federal process in a case such as this is through an action in the
District Court. See Bryan v. Rainwater, 254 B.R. at 276. Accordingly, the plaintiff’s
motion is denied without prejudice to apply for the writ in the District Court.
So ordered.
Dated: New York, New York
July 30, 2014
/s/ Stuart M. Bernstein
STUART M. BERNSTEIN
United States Bankruptcy Judge
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