* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 27 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: DONALD E. ARMSTRONG,

Debtor.
DONALD E. ARMSTRONG,

Appellant,

v. KENNETH A. RUSHTON, Trustee; STEPPES APARTMENTS, LTD.,

Appellees. No. 03-4177 (BAP No. UT-02-007) (BAP)

ORDER AND JUDGMENT *

Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of2--

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant Donald E. Armstrong appeals a judgment of the Bankruptcy Appellate Panel of this Circuit (BAP) affirming a t emporary allowance order and rejecting Armstrong’s argument that the order was v oid because the bankruptcy judge eventually recused herself. Our jurisdiction arises under 28 U.S.C. § 158(d) and, although we are reviewing a judgment of the BA P, we independently review the underlying decision of the bankruptcy co urt. United States v. Myers (In re Myers) , 362 F.3d 667, 670 (10th Cir. 2004). We review the decision to allow a temporary claim u nder the Federal Rules of Bankruptcy Procedure § 3018(a) for abuse of disc retion. See generally In re Marin Town Ctr. , 142 B.R. 374, 379 (N.D. Cal. 1992). Under that s tandard, the decision of the bankruptcy court will not be ov erturned unless we are firmly and definitely convinced that the court made a clea r error of judgment or exceeded the bounds of permissible choice. Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994). In his opening brief, Armstrong lists eleven issues , many of which have nothing to do with the temporary allowance order th at is the subject of this1 We have today held that the BAP correctly dismissed the appeal from the

bankruptcy court order confirming the plan. See Armstrong v. Rushton , No. 02-4101 (10th Cir. ____________ 2004). -3- appeal. Those extraneous issues either go to the v alidity of the confirmed plan 1 or to cases and judgments over which this court has no jurisdiction. With respect to the temporary allowance order, we h ave reviewed the briefs, the record, and the applicable law pursuantto the above-mentioned standards, and we determine that Armstrong has established no reversible error in this case. As we have noted in several other decis ions issued this day, the fact that the BAP has recently found that the bankruptcycourt lacked jurisdiction to enter criminal contempt sanctions against Armstrong in a related matter has no bearing on this appeal. Armstrong’s motion to file a supplemental appendix is GRANTED. The judgment of the BAP is AFFIRMED for s ubstantially the same reasons stated by that panel in its order filed May9, 2003. The mandate shall issue forthwith.
Entered for the Court

Bobby R. Baldock Circuit Judge