In the aftermath of Northern Pipeline, before the enactment of BAFJA
, the bankruptcy courts of Florida developed a number of creative solutions to complete the tasks at hand.
Although the Eleventh Circuit held, in effect, that the BAFJA's elimination of "court of the United States" status for the bankruptcy courts removed EAJA jurisdiction from the bankruptcy courts,(121) it is likely that Congress was completely unaware that the BAFJA amendments affected the EAJA.
The group of courts included in section 451 is a subset of those courts eligible to shift fees under the EAJA, as demonstrated by the inclusion of the United States Court of Claims and the United States Court of Veterans Appeals,(126) even though those courts are not listed in section 451.(127) If Congress's intent in passing the EAJA was to grant authority to the bankruptcy courts only because they were expected to be "courts of the United States" and enjoyed the equivalent of district court jurisdiction under the BRA and were therefore qualified to exercise EAJA power, then it is true that the Marathon decision and the enactment of BAFJA would have stripped the bankruptcy courts of EAJA power.
(119.)The BAFJA contained a section which provided, "Section 402(b) of the [BRA] is amended by striking out 'shall take effect June 28, 1984' and inserting in lieu thereof 'shall not be effective.'" Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.
(1984) (setting out text of BAFJA without analysis).
Because there is considerable ambiguity regarding the current law, as demonstrated by the split between the Tenth and Eleventh Circuits, and because there is no direct evidence that Congress intended a change in the scope of the EAJA when it passed BAFJA, the pre-BAFJA regime of bankruptcy court authority over EAJA questions should continue.
As for [section] 105 itself, BAFJA did not leave it entirely unchanged, as clause (a) was amended to read "court" instead of "bankruptcy court," (207) and clause (c) was added to clarify that [section] 105 does not provide bankruptcy courts with any form of independent jurisdiction beyond that outlined in Title 28.
Whatever the thinking, shortly after BAFJA was enacted, in 1986, the Advisory Committee on Bankruptcy Rules promulgated several amendments.
Indeed, BAFJA's legislative history makes clear bankruptcy judges were modeled after magistrate judges: one legislative sponsor of BAFJA explained that "[t]he powers that bankruptcy judges exercise" will be "identical to those exercised by magistrates," including the power to "enter a binding judgment" as long as "the parties consent." (232) Post-2000, magistrate judges gained the authority to punish direct contempt summarily in a revision to 28 U.S.C.
Maybe Congress felt lazier with BAFJA; there's no crime in that.
(251) This left Congress fumbling for the constitutional threshold in designing BAFJA, clinging to the core/noncore distinction excerpted above.