Free Order - District Court of Delaware - Delaware

Case 1:06-cv—O0O44-SLR Document 14 Filed O9/29/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: )
) Chapter II
TRANS WORLD AIRLINES, INC., )
et al., ) Bk. No. 01-0056(PJW)
) Jointly Administered
Debtors. )
HERBERT MCMILLIAN, )
Appellant, §
v. ; Civ. No. 06-044-SLR
TWA POST CONFIRMATION ESTATE ;
and HARTFORD INSURANCE GROUP, )
Appellees, g
O R D E R
At Wilmington this 29th day of September, 2006, having
reviewed the appeal filed by Herbert McMillian and the papers
filed in connection therewith;
IT IS ORDERED that appellees’ motion to dismiss the appeal
(D.I 8) is granted and the appeal is dismiss, for the reasons
that follow.
I. Standard of review. This court has jurisdiction to
hear an appeal from the bankruptcy court pursuant to 28 U.S.C. §
I58(a). In undertaking a review of the issues on appeal, the
court applies a clearly erroneous standard to the bankruptcy

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court’s findings of fact and a plenary standard to that court's
legal conclusions. gee Am. Flint Glass Workers Union v. Anchor
Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999). With mixed
questions of law and fact, the court must accept the bankruptcy
court’s "finding of historical or narrative facts unless clearly
erroneous, but exercise[s] ‘plenary review of the [bankruptcy]
court's choice and interpretation of legal precepts and its
application of those precepts to the historical facts.’" Mellon
Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 642 (3d
Cir. 1991) (citing Universal Minerals, Inc. v. C.A. Hughes & Co.,
669 F.2d 98, 101-02 (3d Cir. 1981)). The district court's
appellate responsibilities are further informed by the directive
of the United States Court of Appeals for the Third Circuit,
which effectively reviews on a de nggg basis bankruptcy court
opinions. In re Hechinger, 298 F.3d 219, 224 (3d Cir. 2002); In
re Telegroup, 281 F.3d 133, 136 (3d Cir. 2002).
2. Question presented. Does this court have jurisdiction
to hear the appeal, where appellant failed to timely file a
notice of appeal?
3. Background facts. By order dated November 22, 2005,
the bankruptcy court concluded that it lacked jurisdiction over
“the disability claims of Mr. McMillian or the allegations of
criminal misconduct he has made as a result of 28 U.8.C. § 157."
Appellant filed a notice of appeal dated December 16, 2005, which
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was filed in the bankruptcy court on December 20, 2005.
4. Analysis. Bankruptcy Rule 8002(a) states, “The notice
of appeal shall be filed with the clerk within 10 days of the
date of the entry of the judgment, order, or decree appealed
from.” The United States Court of Appeals for the Third Circuit
has held that “[t]he failure to file a timely notice of appeal
creates a jurisdictional defect barring appellate review.”
Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir.
1997).
5. The November 22, 2005 order was signed and docketed on
November 22, 2005. In order to be timely filed, appellant's
notice of appeal had to be filed no later than December 6, 2005
(giving appellant the benefit of counting only 10 weekdays).
Even if the court considers the December 16, 2005 date printed on
appellant's notice of appeal, this court lacks appellate
jurisdiction based on appellant’s untimely filing.l
6. Even if the court were to consider the merits of the
appeal, the bankruptcy court committed no error in concluding
that its order dated August 24, 2001, modifying the automatic
stay of 11 U.S.C. § 362 to allow appellant to pursue his claims
for disability insurance benefits in previously filed litigation,
divested the bankruptcy court of further jurisdiction over any
1The court further notes that appellant did not timely file
the statement of issues or the designation of the record, as
required under Bankruptcy Rule 8006.
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matters relating t0 such claims.
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