Judge McKeown is right in this bankruptcy appeal. There's no appellate jurisdiction here. The case isn't over. There's no final judgment. So the appeal is properly dismissed.
Judge McKeown is also a bit snarky about the inexplicable delay in being told by the parties that the underlying bankruptcy petition had been dismissed seven months prior to the scheduled oral argument in the Ninth Circuit. But this snark seems justified. I'd be snarky too. And do the same thing that she (and the rest of the panel) do: dismiss the appeal and leave the mootness issue for resolution by the lower courts. They can sort it out.
One more thing. Isn't it ironic that the first sentence of the legal analysis in Judge McKeown's opinion reads: "Although both parties urge us to decide this appeal on its
merits, “[i]t needs no citation of authorities to show that the
mere consent of parties cannot confer upon a court of the
United States the jurisdiction to hear and decide a case.'" And then cites a case.
