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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30491

In the Matter of: SAM JUDE HOLLOWAY,

Debtor

KIM STANSBURY,

Appellant

v.

SAM JUDE HOLLOWAY,

Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 6:09-CV-0068

Before KING, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:*

The issue in this appeal is whether a bankruptcy court order denying the

enforcement of a settlement agreement is an appealable order for purposes of

appellate review by the district court and this court. The bankruptcy court order

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2010

Charles R. Fulbruge III

Clerk

Case: 09-30491 Document: 00511050877 Page: 1 Date Filed: 03/15/2010
No. 09-30491

2

did not adjudicate all the claims in the adversary proceeding, the district court

did not grant leave to appeal the interlocutory order, and the parties did not

obtain certification to appeal the interlocutory order to this court. Consequently,

the district court lacked jurisdiction, as do we. Therefore, we dismiss this appeal

for lack of jurisdiction and vacate the district court’s judgment.

I. BACKGROUND

Kim Stansbury (“Stansbury”) and Sam Holloway (“Holloway”) were

shareholders in the same corporation. In exchange for loaning money to the

corporation, Stansbury received a promissory note from the corporation in the

amount of $357,856.99; Holloway cosigned the note. On January 2, 2008,

Holloway filed a petition for relief under Chapter 7 of the Bankruptcy Code. The

bankruptcy court set April 28, 2008, as the discharge date of Holloway’s case and

ordered that objections to discharge be filed by then. No objections to discharge

were filed, and a discharge was entered on April 28.

The following day, Stansbury filed a complaint to determine

dischargeability and a motion for relief from the order. Over the course of three

months, the parties engaged in a series of settlement negotiations. After

initially reaching agreement over the general terms of a settlement, negotiations

between Stansbury and Holloway broke down over a dispute concerning the form

of the settlement, in particular whether a consent judgment would be entered

or the agreement would be classified as a compromise. Throughout the entire

settlement negotiation process, Stansbury’s complaint was still pending before

the bankruptcy court.

When further discussions failed to produce an agreement on the form of

the settlement, Stansbury filed a motion to enforce the settlement agreement.

Case: 09-30491 Document: 00511050877 Page: 2 Date Filed: 03/15/2010
No. 09-30491

3

The bankruptcy court denied Stansbury’s motion, finding that there was no

meeting of the minds on whether a consent judgment would be entered. Without

seeking leave of the court, Stansbury filed a direct appeal of the bankruptcy

court’s order to the district court. The district court affirmed the bankruptcy

court’s order and dismissed Stansbury’s action with prejudice. Stansbury then

appealed to this court, but neither the bankruptcy court nor the district court

certified the issue for appeal.

We raised the question of our own jurisdiction sua sponte and ordered

supplemental briefing on the issue. After reviewing the supplemental briefs, we

conclude that the bankruptcy court’s order is not an appealable order for

purposes of appellate review by the district court or this court.

II. DISCUSSION

District courts have appellate jurisdiction over “final judgments, orders,

and decrees” issued by the bankruptcy court. 28 U.S.C. § 158(a)(1). This

jurisdiction includes interlocutory orders and decrees which it has granted leave

to appeal. Id. § 158(a)(3). This court views finality in bankruptcy proceedings

in a practical and less technical light to preserve judicial and other resources.

England v. FDIC (In re England), 975 F.2d 1168, 1171 (5th Cir. 1992) (citations

omitted). We have determined that “an order which ends a discrete judicial unit

in the larger case concludes a bankruptcy proceeding and is a final judgment .

. . . Finality in bankruptcy cases is contingent upon the conclusion of an

adversarial proceeding within the bankruptcy case, rather than the conclusion

of the entire litigation.” Id. at 1172 (citations omitted).

In this case, the bankruptcy court’s order, while treated as a final

appealable order by the district court, was interlocutory. See, e.g., Providers

Case: 09-30491 Document: 00511050877 Page: 3 Date Filed: 03/15/2010
No. 09-30491

4

Benefit Life Ins. Co. v. Tidewater Group, Inc. (In re Tidewater Group, Inc.), 734

F.2d 794, 796–97 (11th Cir. 1984) (holding that the denial of a motion to enforce

a settlement agreement is not a final, appealable order). It was interlocutory

because, after it ruled on the enforceability of the settlement agreement, the

bankruptcy court was still left with an adversary proceeding, namely

Stansbury’s initial complaint to determine dischargeablity and his motion

seeking relief from the discharge order, that must be resolved. 

Having determined that the bankruptcy court’s order was interlocutory,

we recognize that if the bankruptcy court had granted leave to appeal, the

district court would have had jurisdiction. As noted above, in addition to having

jurisdiction over final orders of bankruptcy courts, district courts have

jurisdiction over interlocutory bankruptcy court orders which they have granted

leave to appeal. Id. § 158(a)(3).

Bankruptcy Rules 8001–8004 govern appeal by leave. Rule 8001(b)

provides that “[a]n appeal from an interlocutory judgment, order or decree of a

bankruptcy judge . . . shall be taken by filing a notice of appeal . . . accompanied

by a motion for leave to appeal.” Rule 8003(a) requires that a motion for leave

to appeal contain a statement of the facts necessary to an understanding of the

questions presented by the appeal, a statement of those questions and the relief

sought, a statement of the reasons why an appeal should be granted, and a copy

of the order. If a motion for leave to appeal is not filed, but a notice of appeal is

timely filed, “the district court or bankruptcy appellate panel may grant leave

to appeal or direct that a motion for leave to appeal be filed.” FED. R. BANKR. P.

8003(c). The Advisory Committee note to subsection (c) explains that the district

Case: 09-30491 Document: 00511050877 Page: 4 Date Filed: 03/15/2010
No. 09-30491

5

court has three options: (1) direct that a motion be filed; (2) grant leave to appeal

exclusively on the papers already filed; or (3) deny leave to appeal. 

Here, Stansbury filed a notice of appeal to the district court but failed to

file a motion for leave to appeal. Nothing in the record indicates that the district

court chose any of the three alternatives that are sanctioned by the Advisory

Committee notes when such situations arise. In other words, the record does not

reveal any district court order allowing an appeal or any request for such by the

parties. Nor could the district court impliedly grant Stansbury leave to appeal,

after the fact, by simply issuing a ruling on the appeal. See Clark v. First State

Bank (In Re White Beauty View, Inc.), 841 F.2d 524, 527 (3d Cir. 1988) (holding

that a district court cannot impliedly grant leave to appeal by merely ruling on

an appeal before it from the bankruptcy court). Therefore, the district court

lacked jurisdiction, and we must vacate its judgment.

In any event, were we to assume that the district court had impliedly

granted leave, we would still lack jurisdiction under 28 U.S.C. § 158(d)(1).

Under 28 U.S.C. § 158(d)(1), the courts of appeals have jurisdiction over “all final

decisions, judgments, orders and decrees” issued by the district court. For

reasons explained above, in this case, no final order exists, and we therefore lack

jurisdiction under 28 U.S.C. § 158(d)(1). See, e.g., In re Tidewater, 734 F.2d at

796–97.

While other bases for this court’s exercise of appellate jurisdiction exist

under 28 U.S.C. § 158(d)(2)(A)–(B), our review of the record reveals that neither

the bankruptcy court nor the district court certified this question for appeal after

determining, for example, that “an immediate appeal from the judgment, order

or decree may materially advance the progress of the case or proceeding in which

Case: 09-30491 Document: 00511050877 Page: 5 Date Filed: 03/15/2010
No. 09-30491

6

the appeal is taken.” 28 U.S.C. § 158(d)(2)(A)(iii); see also id. § 158(d)(2)(B)(i). 

Because we do not have jurisdiction under § 158(d)(2), we consider

whether there are alternative bases for jurisdiction that would allow us to

review the bankruptcy court’s interlocutory order. There are two possibilities.

First, 28 U.S.C. § 1292(b), when its requirements are satisfied, can provide a

court of appeals with jurisdiction to entertain an appeal from an interlocutory

order of a district court sitting in its bankruptcy appellate capacity. See Conn.

Nat’l Bank v. German, 503 U.S. 249, 251–52 (1992). As noted above, the district

court in this case lacked jurisdiction over the bankruptcy court’s interlocutory

order, and even if it had jurisdiction, it failed to certify its decision for appeal as

required by § 1292(b). Thus, § 1292(b) does not provide a basis for jurisdiction.

The second possible basis for jurisdiction is the collateral-order exception

to the final judgment rule established in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949). In order to be reviewable under the collateral

order doctrine, an order must: (1) conclusively determine the disputed question;

(2) resolve an important issue completely separate from the merits of the action;

and (3) be effectively unreviewable on appeal from a final judgment. Will v.

Hallock, 546 U.S. 345, 349 (2006); see also Collateral Control Corp. v. Deal (In

re Covington Grain Co.), 638 F.2d 1357, 1360 (5th Cir. 1981) (applying the

collateral-order exception to bankruptcy appeals).

Here, however, neither the second nor the third requirement is satisfied.

The bankruptcy court’s order cannot be separated from the merits of the action

for appellate review of the proposed settlement. See, e.g., In re Tidewater, 734

F.2d at 797 (holding that the collateral order doctrine is inapplicable to cases

involving the enforcement of settlement agreements because “the bankruptcy

Case: 09-30491 Document: 00511050877 Page: 6 Date Filed: 03/15/2010
No. 09-30491

7

court order cannot be separated from the merits of the action for appellate

review of the proposed settlement”). The collateral order doctrine is also

inapplicable because immediate review is not necessary to protect important

interests. The bankruptcy court order denying the enforcement of the

settlement agreement can be reviewed on appeal after entry of final judgment

in the bankruptcy proceedings.

III. CONCLUSION

For the reasons stated above, we conclude that the district court did not

have jurisdiction over the bankruptcy court’s order denying Stansbury’s motion

to enforce the settlement agreement, and neither do we. We nevertheless have

jurisdiction to require the district court to vacate its judgment, which we do.

See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998);

Nat’l Benevolent Ass’n of the Christian Church (Disciples of Christ) v. Weil,

Gotshal & Manges, LLP (In re Nat’l Benevolent Ass’n of the Christian Church

(Disciples of Christ)), 333 F. App’x 822, 828 (5th Cir. 2009); Howery v. Allstate

Ins. Co., 243 F.3d 912, 921 (5th Cir. 2001); Alvidres v. Reyes Reno, 180 F.3d 199,

206 (5th Cir. 1999).

The judgment of the district court is VACATED. This appeal is

DISMISSED for lack of subject matter jurisdiction. Stansbury shall bear the

costs of this appeal.

Case: 09-30491 Document: 00511050877 Page: 7 Date Filed: 03/15/2010