IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-51055

In the Matter of: GLORIA ARTESIA PENN

 Debtor

GLORIA ARTESIA PENN, Debtor, 

 Appellant

v.

MARY K. VIEGELAHN

 Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:18-CV-354

Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

BACKGROUND

Gloria Penn filed a Chapter 13 bankruptcy petition in the Western 

District of Texas. Among her assets, she listed an income-tax refund for $5,832. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 9, 2019

Lyle W. Cayce

Clerk

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The form Chapter 13 plan adopted by the Western District allows debtors to 

retain only the first $2000 of a tax refund as nondisposable income, with the 

rest being paid into the plan. See Fed. R. Bankr. P. 3015.1 (authorizing a 

district to require the use of a local form for a Chapter 13 plan). But Penn

submitted a plan to the bankruptcy court that included a “nonstandard” 

provision “reserv[ing] [her] right to file [a] relevant motion to retain [a] tax 

refund should a special need arise, to the extent said potential refund is not 

disposable income.” She then filed a motion to retain her entire 2017 refund to 

use for home repairs. The Chapter 13 Trustee objected to the plan on several 

grounds, including that the plan included a nonstandard provision contrary to 

the form plan.

At a hearing on Penn’s motions, the bankruptcy court told Penn that, 

pursuant to the Western District’s form plan, she could not retain her full 

refund and continue with her Chapter 13 proceedings. The court offered Penn

several alternatives, including modifying the plan to allow her to keep more 

monthly income for home repairs, dismissing her petition to allow her to use 

her tax refund as she saw fit, or converting her case to a Chapter 7 liquidation. 

The court offered to grant a continuance to permit her to review her options. 

Penn declined the continuance and asked the court to enter orders denying the 

motion to retain the refund, denying the motion to confirm the plan, and 

dismissing the bankruptcy petition. The bankruptcy court entered the orders

as Penn requested. With the case dismissed, the court had no occasion to 

address the Trustee’s other objections to the proposed plan.

Penn appealed to the district court, arguing that the Western District’s 

form plan violates various provisions of the Bankruptcy Code and that she 

should have been permitted to retain her entire tax refund. The Trustee 

disagreed on the merits, but also argued that Penn’s request for a dismissal 

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mooted her case. The district court held that it had jurisdiction and affirmed 

the bankruptcy court’s judgment. Penn now appeals to this court.

DISCUSSION

Before we can reach the merits of Penn’s appeal, we must verify that the 

district court had subject-matter jurisdiction. The district court has 

“jurisdiction to hear appeals . . . from final judgments, orders, and decrees . . . 

of bankruptcy judges entered in cases and proceedings” before the bankruptcy 

court. 28 U.S.C. § 158(a). The denial of a motion to confirm is not itself a final 

order because the relevant “proceeding”—“the process of attempting to arrive 

at an approved plan”—continues so long as the court gives the debtor a chance 

to submit a revised plan to the bankruptcy court. Bullard v. Blue Hills Bank, 

135 S. Ct. 1686, 1692 (2015). There is no final order on a motion to confirm 

until the court either confirms a plan or denies confirmation “and the case is 

dismissed as a result.” Id. 

This rule serves important purposes in bankruptcy proceedings, where 

“expedition is always an important consideration.” Id. at 1694. It avoids 

“delays and inefficiencies” from “piecemeal appeals.” Id. at 1693. And it “should 

encourage the debtor to work with creditors and the trustee to develop a 

confirmable plan as promptly as possible.” Id. at 1694.

At first glance, this case appears to have the quintessential elements of 

a final, appealable order. The bankruptcy court denied Penn’s motion to retain 

her entire tax refund, denied her motion to confirm the plan, and dismissed 

her bankruptcy petition. Not quite, though. After the bankruptcy court ruled 

on the tax return issue, it dismissed the petition at Penn’s request. Penn

declined the court’s offer of additional time to revise her plan and requested 

dismissal before the court had ruled on any other aspects of her plan.

No doubt Penn was “convinced that the original plan complied with the 

Code and that the bankruptcy court was wrong to deny confirmation.” Id. at 

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1690. But a party may not “manufactur[e] . . . appellate jurisdiction” over a 

non-final order by voluntarily dismissing remaining claims “without an 

adjudication on the merits.” Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 

499–500 (5th Cir. 2004). By requesting an immediate dismissal, Penn

prevented the bankruptcy court from addressing the Trustee’s remaining 

objections to other aspects of her proposed plan. Were we to reach the merits 

and conclude that the bankruptcy court erred in denying the request to retain 

the entire tax refund, the bankruptcy court could deny confirmation on remand 

based on one of the Trustee’s other objections. Penn might request another 

dismissal and again appeal to the district court, and then again to this court. 

And so on. This is precisely the scenario that the final-judgment rule is 

designed to prevent. See Bullard, 135 S. Ct. at 1693–94.

Penn had potential avenues for appellate review of the bankruptcy 

court’s ruling regarding her tax return. See id. at 1695–96 (describing the 

options of (1) seeking certification for interlocutory review under 28 U.S.C. 

§ 158, (2) accepting dismissal after the bankruptcy court rules on the entire 

plan and “risking [the] entire bankruptcy case on the appeal,” or 

(3) “propos[ing] an amended plan and appeal[ing] its confirmation”). But this 

was not one of them, and the district court lacked jurisdiction.

Given our conclusion that the district court lacked jurisdiction over the 

appeal from its inception, we need not address the Trustee’s argument that 

Penn mooted her appeal by renegotiating her debts directly with her creditors 

after the bankruptcy court dismissed her petition.

We therefore VACATE the district court’s judgment and REMAND the 

case for the district court to dismiss the appeal. We DENY the Trustee’s 

pending motions to supplement the record and to dismiss this appeal as moot.

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