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: ANDREW DELANEY, 

Debtor. 

*************************************

ANDREW JOHN DELANEY,

Debtor-Appellant, 

v.

GREGORY 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.
 

2 

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. 
3

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.”
4

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
5

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.” 
6

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 
7

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) 
8

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.