In re Delaney

23-434 (L)
In re Delaney
United States Court of Appeals
For the Second Circuit
August Term 2023
Argued: April 15, 2024
Decided: August 8, 2024
No. 23-434 (L)
IN RE: A NDREW D ELANEY ,
Debtor.
*************************************
A NDREW JOHN D ELANEY ,
Debtor-Appellant,
v.
G REGORY MESSER , IN HIS CAPACITY AS TRUSTEE,
Trustee-Appellee.*
Appeal from the United States District Court
for the Eastern District of New York
No. 22-cv-4805, Donnelly, Judge.
* The Clerk of Court is directed to amend the caption accordingly.

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Before: JACOBS , PARK, and NATHAN, Circuit Judges.
Andrew Delaney filed a voluntary petition for relief under
Chapter 7 of the Bankruptcy Code. He later moved to dismiss his
petition, but the bankruptcy court (Mazer-Marino, B.J.) denied his
request because dismissal would not be in the interest of all parties,
namely Delaney’s creditors. Delaney appealed that denial to the
district court (Donnelly, J.), which dismissed his appeal for lack of
appellate jurisdiction. It concluded that the denial of a motion to
dismiss a bankruptcy petition was not a final order that may be
appealed as of right under 28 U.S.C. § 158(a)(1). Delaney now appeals
the district court’s dismissal, arguing that the bankruptcy court’s
order was final and appealable. But we too lack jurisdiction over
Delaney’s appeal of a nonfinal order, so we DISMISS Delaney’s
appeal.
Andrew J. Delaney, pro se, Makati, Philippines, for
Debtor-Appellant.
Gary F. Herbst, LaMonica Herbst & Maniscalco, LLP,
Wantagh, NY, for Trustee-Appellee.

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PARK, Circuit Judge:
Andrew Delaney filed a voluntary petition for relief under
Chapter 7 of the Bankruptcy Code. He later moved to dismiss his
petition, but the bankruptcy court (Mazer-Marino, B.J.) denied his
request because dismissal would not be in the interest of all parties,
namely Delaney’s creditors. Delaney appealed that denial to the
district court (Donnelly, J.), which dismissed his appeal for lack of
appellate jurisdiction. It concluded that the denial of a motion to
dismiss a bankruptcy petition was not a final order that may be
appealed as of right under 28 U.S.C. § 158(a)(1). Delaney now appeals
the district court’s dismissal, arguing that the bankruptcy court’s
order was final and appealable. But we too lack jurisdiction over
Delaney’s appeal of a nonfinal order, so we dismiss Delaney’s appeal.
I. BACKGROUND
Debtor-Appellant Andrew Delaney is a lawyer who, acting pro
se, filed a Chapter 7 petition in the Eastern District of New York listing
$1,110 in assets and $44,434 in liabilities. Trustee-Appellee Gregory
Messer was appointed as the trustee responsible for administering
Delaney’s bankruptcy estate. Delaney later changed his mind and
filed a total of five voluntary motions to dismiss his petition.1
Delaney withdrew the first two motions, and the bankruptcy court
1 We have recognized that motions to dismiss a bankruptcy petition,
including those filed by the debtor himself, are governed by 11 U.S.C.
§ 707(a). See In re Smith, 507 F.3d 64, 72 (2d Cir. 2007). Section 707(a) permits
dismissal of a Chapter 7 petition “only for cause.”

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denied the next two. This appeal concerns the fifth and last motion
to dismiss.
Delaney argued that he was not a debtor as defined by 11 U.S.C.
§ 109(a) and that venue was improper because Delaney “is a
domiciliary of a foreign country” who had not resided in the Eastern
District for 180 days before filing his petition. The bankruptcy court
disagreed. First, it concluded that dismissal would not be in the
interest of all parties—as required for a voluntary dismissal under 11
U.S.C. § 707(a), see In re Murray, 900 F.3d 53, 58 (2d Cir. 2018)—
because the trustee had made progress by achieving “a modest
settlement.” Second, the bankruptcy court had previously rejected
Delaney’s jurisdiction and venue arguments in denying a prior
motion to dismiss, and those decisions remained binding. So the
bankruptcy court again denied Delaney’s motion to dismiss his
petition.
Delaney appealed the bankruptcy court’s denial to the district
court. But the district court dismissed his appeal without reaching
the merits, concluding that the bankruptcy court’s denial of the
motion to dismiss was not a final order that may be appealed as of
right under 28 U.S.C. § 158(a)(1). See In re Delaney, No. 22-cv-1664
(AMD), 2023 WL 2614099, at *10-11 (E.D.N.Y. Mar. 20, 2023). It noted
that the Second Circuit has “not definitively ruled” on the question
whether a bankruptcy court’s denial of a motion to dismiss a
bankruptcy petition constitutes a final order. Id. at *10. It observed,
however, that other circuits and district courts in this Circuit have
concluded that such orders are nonfinal. See id. It concluded that the

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order was nonfinal because “a bankruptcy order is typically
considered final only when it finally disposes of discrete disputes
within the larger case,” which did not occur here because the denial
of a motion to dismiss merely allows the case to proceed. Id. (cleaned
up) (citing In re Sonnax Indus., 907 F.2d 1280, 1283 (2d Cir. 1990)). The
district court treated Delaney’s notice of appeal as a motion for leave
to appeal under 28 U.S.C. § 158(a)(3) and denied it.2
Delaney now appeals the district court’s decision. We directed
the parties to brief “whether the bankruptcy court’s order denying
[Delaney’s] motion to dismiss his bankruptcy petition was a final,
appealable order.” In re Delaney, No. 23-434(L), 2023 WL 6618118, at
*1 (2d Cir. July 12, 2023).
II. DISCUSSION
“We turn first, as we must, to the issue of our own appellate
jurisdiction.” RSS WFCM2018-C-44 - NY LOD, LLC v. 1442 Lexington
Operating DE LLC, 59 F.4th 586, 590 (2d Cir. 2023) (cleaned up). If we
lack appellate jurisdiction, we must dismiss the appeal. See Marquez
v. Silver, 96 F.4th 579, 582 (2d Cir. 2024). “Bankruptcy appeals are
governed for the most part by [28 U.S.C.] § 158.” Conn. Nat'l Bank v.
Germain, 503 U.S. 249, 252 (1992). Section 158(d)(1) provides that
“[t]he courts of appeals shall have jurisdiction of appeals from all final
2 Federal Rule of Bankruptcy Procedure 8004(d) authorizes the
district court to “treat the notice of appeal as a motion for leave and either
grant or deny it” when “an appellant timely files a notice of appeal under
this rule but does not include a motion for leave.”

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decisions, judgments, orders, and decrees” of district courts
reviewing decisions of bankruptcy courts.
Generally, a final decision “is one that conclusively determines
all pending claims of all the parties to the litigation, leaving nothing
for the court to do but execute its decision.” Petrello v. White, 533 F.3d
110, 113 (2d Cir. 2008). Although a “more flexible concept of ‘finality’
is applied” in bankruptcy, In re Penn Traffic Co., 466 F.3d 75, 77 (2d
Cir. 2006) (per curiam), a district court’s order is not final if it
“remand[s] for significant further proceedings in bankruptcy courts,”
In re Décor Holdings, Inc., 86 F.4th 1021, 1024 (2d Cir. 2023) (per
curiam).
Whether a district court’s order requires significant further
proceedings in bankruptcy court sometimes turns on whether the
underlying bankruptcy order was itself final. When, as here, the
district court dismisses an appeal from the bankruptcy court because
it lacks appellate jurisdiction, our appellate jurisdiction turns on the
effect of such dismissal on proceedings in the bankruptcy court. See
In re Chateaugay Corp., 876 F.2d 8, 9 (2d Cir. 1989) (per curiam) (“[I]f
an order of a bankruptcy court is interlocutory, . . . we have no
jurisdiction to review its merits nor to review a district court’s
decision to deny leave for an interlocutory appeal. However, we must
review the threshold question of whether a bankruptcy court order is
interlocutory; otherwise, we would not be able to determine the issue
on which our own jurisdiction depends.”).
Here, the district court’s dismissal of Delaney’s appeal left in
place a nonfinal order of the bankruptcy court. The bankruptcy

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court’s order denying Delaney’s motion to dismiss his petition is
nonfinal because it did not “finally dispose of [a] discrete dispute[]
within the larger bankruptcy case.” In re Penn Traffic Co., 466 F.3d at
77-78 (alteration omitted); see Catlin v. United States, 324 U.S. 229, 236
(1945) (“[D]enial of a motion to dismiss, even when the motion is
based upon jurisdictional grounds, is not immediately reviewable.”).
The bankruptcy court allowed the case to proceed and did not “finally
dispose” of any claim or dispute. The district court thus correctly
concluded that the denial of a motion to dismiss a bankruptcy petition
is a nonfinal order under § 158(a).
The district court properly construed the bankruptcy court’s
denial of Delaney’s motion as a nonfinal order that, under § 158(a)(3),
requires leave to appeal by the district court. Applying the test set
forth in 28 U.S.C. § 1292(b), the district court denied Delaney leave to
bring an interlocutory appeal of the bankruptcy court’s order under
§ 158(a)(3). But absent a certification under § 158(a)(3), we lack
jurisdiction under § 1292(b) to review the district court’s decision to
deny leave to appeal. See Germain, 503 U.S. at 254 (“So long as a party
to a proceeding or case in bankruptcy meets the conditions imposed
by § 1292, a court of appeals may rely on that statute as a basis for
jurisdiction.”); In re AroChem Corp., 176 F.3d 610, 618 (2d Cir. 1999)
(“As the district court has not certified this appeal under section
1292(b), we will have jurisdiction only if either (1) the district court's
order was final, and hence appealable under section 158(d), or (2) the
district court's order was interlocutory but appealable under Cohen.”).
The district court entered an order under § 158(a)(3) which is not final.
See In re AroChem Corp., 176 F.3d at 618 n.4 (“Because section 158(d)

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limits this Court's jurisdiction to appeals over ‘final’ orders, . . . a
district court order issued under 158(a)(3) is, by definition, not
appealable to the court of appeals under section 158.”). The district
court’s decision not to grant Delaney leave to appeal is thus not one
that we may review. See In re Kassover, 343 F.3d 91 (2d Cir. 2003)
(dismissing the appeal for lack of jurisdiction under § 1292(a)(1) when
a district court, acting under 28 U.S.C. § 158(a)(3), declined to hear the
merits of an appeal from the granting of an injunction).
The district court’s dismissal of Delaney’s appeal was
tantamount to an order affirming the bankruptcy court’s decision on
the merits for purposes of finality under § 158(d)(1): The bankruptcy
court’s order denying Delaney’s motion to dismiss set the case on
track for a final resolution on the merits. And the district court’s
dismissal of the appeal left work to be done in the bankruptcy court.
As explained above, § 158(d)(1) authorizes our review only when the
district court’s order does not contemplate significant further
proceedings in the district court. It thus cannot support our appellate
jurisdiction here.
III. CONCLUSION
The district court dismissed Delaney’s appeal of the
bankruptcy court’s nonfinal order. The district court’s order left work
to be done in the bankruptcy court, rendering it nonfinal for purposes
of § 158(d). We thus lack appellate jurisdiction and dismiss Delaney’s
appeal.

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