NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

Nos. 22-1038 & 22-3021 (consolidated) 

__________ 

IN RE: JEFFREY W. SMILES, 

 Appellant 

____________________________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action Nos. 5:21-cv-05130 & 5:22-cv-00991) 

District Judge: Honorable Gerald J. Pappert 

____________________________________ 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 

May 11, 2023 

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 

(Opinion filed: May 19, 2023) 

___________ 

OPINION*

___________ 

PER CURIAM 

 In these consolidated cases, pro se litigant Jeffrey Smiles challenges the District 

Court’s decisions dismissing his two appeals from the United States Bankruptcy Court 

for the Eastern District of Pennsylvania. The District Court dismissed the first appeal for 

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

non-compliance with Federal Rule of Bankruptcy Procedure 8009, and it dismissed the 

second appeal for failure to prosecute. For the reasons that follow, we will vacate both of 

the District Court’s decisions, and we will remand for further proceedings.

I.

In 2021, Smiles filed in the Bankruptcy Court a Chapter 7 petition and an 

application to waive the Chapter 7 filing fee. The Bankruptcy Court denied the 

application, ordered Smiles to pay the filing fee in installments, and later denied his 

motion for reconsideration. Smiles then appealed to the District Court, challenging the 

Bankruptcy Court’s order denying reconsideration.

About a month later, on December 22, 2021, a letter from the Bankruptcy Court 

Clerk to the District Court Clerk was entered on the District Court’s docket. That letter 

indicated that Smiles had not filed a designation of the record on appeal. That same day, 

the District Court dismissed the appeal based on Smiles’s non-compliance with Rule 

8009, which provides that the appellant “must file with the bankruptcy clerk and serve on 

the appellee a designation of the items to be included in the record on appeal and a 

statement of the issues to be presented.” Fed. R. Bankr. P. 8009(a)(1)(A).1

 Smiles then 

appealed from the District Court’s dismissal order, and our Clerk docketed this appeal at 

C.A. No. 22-1038. We will refer to this appeal as “Appeal I.”

1 The designation and statement must be filed and served within 14 days after (1) “the 

appellant’s notice of appeal as of right becomes effective under Rule 8002,” or (2) “an 

order granting leave to appeal is entered.” Fed. R. Bankr. P. 8009(a)(1)(B).
3

Next, in March 2022, the Bankruptcy Court dismissed Smiles’s Chapter 7 petition 

due to his failure to make the filing-fee installment payments. He then filed in the 

Bankruptcy Court a notice of appeal challenging that dismissal, as well as a motion to 

proceed in forma pauperis (“IFP”) in that appeal. After the Bankruptcy Court denied the 

IFP motion, the District Court, on April 7, 2022, entered an order stating “that if Mr. 

Smiles intends to proceed with this case, then on or before April 29, 2022, he must pay 

the required filing fee.” (Dist. Ct. Order entered Apr. 7, 2022, in Case No. 5:22-cv00991.) On April 28, 2022, Smiles filed a motion for reconsideration, which, inter alia, 

asked the District Court to consider the IFP motion that he had filed in the Bankruptcy 

Court. On May 9, 2022, the District Court denied reconsideration, but it also stated that, 

“[t]o the extent Mr. Smiles intended to ask this Court to permit him to proceed with his 

appeal IFP, then Mr. Smiles must make that request via motion, consistent with Federal 

Rule of Civil Procedure 7(b)(1) and 28 U.S.C. § 1915.” (Dist. Ct. Order at 3, entered 

May 9, 2022, in Case No. 5:22-cv-00991.) The District Court’s May 9 order did not set a 

deadline for filing an IFP motion.

After the District Court entered its May 9 order, the Chief District Judge 

reassigned Smiles’s second appeal to the District Judge who had dismissed his first 

appeal. Next, on May 25, 2022, the District Court directed Smiles to pay the filing fee 

for the second appeal by June 17, 2022, noting that he had not paid that fee or filed an 

IFP motion in that court. On June 17, 2022, Smiles moved the District Court to vacate its 

May 25 order, averring as follows. On May 4, 2022, he contracted pneumonia and went 
4 

into respiratory failure.2

 An ambulance took him to the hospital, where he remained until 

being discharged to a nursing facility for rehabilitation on May 13, 2022. He was 

discharged from the nursing facility on June 3, 2022, to begin in-home therapy, and he 

“has only recently been able to review mail.” (Docket Entry # 9, at 2, in Case No. 5:22-

cv-00991.)3

 Because he “was incapacitated and unable to receive or answer mail for a 

prolonged time,” he asked the District Court to vacate its May 25 order “so that he can 

submit the necessary documents needed to continue his Appeal.” (Id. at 2-3.) 

 On June 29, 2022, the District Court denied in part and granted in part Smiles’s 

motion to vacate. Specifically, the District Court (1) denied the motion to the extent that 

it sought to set vacate the May 25 order, and (2) granted the motion “[t]o the extent the 

Motion requests an extension to pay the filing fee.” (Dist. Ct. Order, at 2, entered June 

29, 2022, in Case No. 5:22-cv-00991.) The June 29 order noted that Smiles’s failure to 

pay the fee by August 1, 2022, “will result in dismissal of this case without further notice 

for failure to prosecute.” (Id.) 

 On July 29, 2022, Smiles filed an IFP motion in the District Court.4 Thereafter, 

the District Court did not rule on, or otherwise address, that motion. Instead, on 

2 Smiles is 68 years old. 

3

 Smiles attached to his motion to vacate a letter from the nursing facility’s social 

services director, who confirmed the information about Smiles’s admission to the hospital 

and subsequent treatment at the nursing facility. 

4

 That motion listed the Bankruptcy Court in the case caption, but the body of the motion 

indicated that he was moving the “U.S. District Court” to proceed IFP on appeal. (See

Docket Entry # 11, at 2, in Case No. 5:22-cv-00991.) 
5 

September 29, 2022, the District Court entered a one-sentence order dismissing Smiles’s 

second appeal without prejudice for failure to prosecute “pursuant to the Court’s June 29, 

2022 Order.” (Dist. Ct. Order entered Sept. 29, 2022, in Case No. 5:22-cv-00991.) 

Smiles then filed another notice of appeal, this time challenging the District Court’s 

September 29 order. The Clerk docketed this new appeal at C.A. No. 22-3021 

(hereinafter “Appeal II”) and consolidated it with Appeal I for disposition. 

II. 

 The District Court had jurisdiction in Smiles’s two appeals pursuant to 28 U.S.C. 

§ 158(a)(1).5

 We have jurisdiction over them pursuant to 28 U.S.C. §§ 158(d)(1) and 

1291.6

 We review the District Court’s dismissal orders for abuse of discretion. See

5

 A district court has jurisdiction to hear appeals “from final judgments, orders, and 

decrees” of the bankruptcy court. 28 U.S.C. § 158(a)(1). For purpose of appellate 

review, “final” orders include those that fall within the scope of the collateral-order 

doctrine. See In re Grand Jury, 705 F.3d 133, 144 (3d Cir. 2012) (explaining that the 

collateral-order doctrine “provides that there is a small class of collateral rulings that, 

although they do not terminate the litigation, are appropriately deemed final under [28 

U.S.C.] § 1291”); see also In re Sacred Heart Hosp. of Norristown, 133 F.3d 237, 241 (3d 

Cir. 1998) (applying the collateral-order doctrine in the bankruptcy-appeal context). 

Here, the Bankruptcy Court’s order denying Smiles’s motion to reconsider its denial of 

his application to waive the filing fee qualified as an immediately appealable collateral 

order. Cf. Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc) 

(holding that a district court order denying leave to proceed IFP falls within the scope of 

the collateral-order doctrine). See generally In re Truong, 513 F.3d 91, 93 (3d Cir. 2008) 

(per curiam) (“Considerations unique to bankruptcy appeals have led us to construe the 

factor of finality broadly in the bankruptcy context.”). 

6

 As indicated above, the District Court dismissed Smiles’s second appeal for failure to 

prosecute based on his failure to pay the filing fee, and it made that ruling without 

addressing his IFP motion or indicating that he could reopen that appeal by filing a new 

IFP motion. Although that dismissal order was “without prejudice,” it nevertheless 

qualifies as a final, appealable order under § 1291. Cf. Redmond v. Gill, 352 F.3d 801, 

803 (3d Cir. 2003) (per curiam) (concluding that order dismissing case without prejudice 
6 

Davis v. Samuels, 962 F.3d 105, 116 n.13 (3d Cir. 2020) (“We review dismissals for 

failure to prosecute or to comply with a court order for abuse of discretion.”); Jewelcor 

Inc. v. Asia Com. Co., 11 F.3d 394, 396-97 (3d Cir. 1993) (reviewing for abuse of 

discretion district court order dismissing bankruptcy appeal based on the appellant’s 

failure to comply with the Federal Rules of Bankruptcy Procedure). 

III.7

 We begin our review with Appeal I. When an appellant in a bankruptcy case 

“fail[s] to take any step other than the timely filing of a notice of appeal,” that failure 

“does not affect the validity of the appeal, but is ground only for the district court . . . to 

act as it considers appropriate, including dismissing the appeal.” Fed. R. Bankr. P. 

8003(a)(2). Although a district court, as a general matter, has discretion to dismiss an 

appeal under those circumstances, “[n]ot every failure to follow procedural rules 

mandates dismissal of the appeal,” In re Comer, 716 F.2d 168, 177 (3d Cir. 1983), and 

“we have repeatedly stated our preference that cases be disposed of on the merits 

whenever practicable,” Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984); cf. 

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (setting forth 

several factors for a district court to consider before dismissing a case as a sanction). 

 In Appeal I, the District Court, acting sua sponte, dismissed Smiles’s bankruptcy 

was a final, appealable order because “it terminated the action and precluded Redmond 

from proceeding IFP”); Wynder v. McMahon, 360 F.3d 73, 75-76 (2d Cir. 2004) 

(concluding that without-prejudice dismissal for failure to prosecute was a final, 

appealable order). 

7

 Judge Phipps does not join this section of the opinion. 
7 

appeal based on his failure to comply with Rule 8009. But the District Court did so 

without first affording Smiles an opportunity to explain the reason(s) for his noncompliance. Cf. Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008) (“[W]e hold that the 

District Court should provide the plaintiff with an opportunity to explain his reasons for 

failing to prosecute the case or comply with its orders prior to dismissing a case sua 

sponte.”). Furthermore, the District Court did not provide any explanation for why it 

chose the sanction of dismissal over some lesser sanction. Without such an explanation, 

we are unable to determine whether the District Court’s decision to dismiss was a proper 

use of its discretion. Cf. Jewelcor Inc., 11 F.3d at 397 (“We review a dismissal for failure 

to prosecute only for an abuse of discretion, but the district court must have considered 

less severe sanctions.”); Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987) 

(“In order that we may properly exercise our function of reviewing for abuse of 

discretion, we have . . . required the district court to make explicit findings concerning 

the factors it must consider in rendering judgment by default or dismissal.”). 

In view of the above, we will vacate the District Court’s December 22, 2021 order 

in Appeal I and remand the matter for further proceedings. On remand, the District Court 

should, after giving Smiles an opportunity to respond, explain whether dismissal is 

appropriate under the circumstances of this case. 

IV. 

We now turn to Appeal II. The District Court’s September 29, 2022 order 

dismissed Smiles’s second bankruptcy appeal for failure to prosecute because he had not 

paid the filing fee. But that one-sentence order did not address important developments 
8

that preceded its entry. Specifically, that order did not mention the District Court’s May 

9, 2022 order, which indicated that Smiles could file an IFP motion and set no deadline 

for filing that motion.8

 Nor did the September 29 order address Smiles’s efforts, both 

before and after the May 9 order, to move the case forward by obtaining the District 

Court’s permission to proceed IFP. Recall that, in April 2022, Smiles asked the District 

Court to consider the IFP motion that he had filed in the Bankruptcy Court. In June 

2022, after spending about a month between a hospital and a nursing facility recovering 

from pneumonia and respiratory failure, Smiles indicated that he wanted to “submit the 

necessary documents needed to continue his Appeal.” (Docket Entry # 9, at 3, in Case 

No. 5:22-cv-00991.) And in July 2022, he filed his IFP motion in the District Court.

Because the District Court’s September 29 order did not consider Smiles’s IFP 

motion or otherwise address any of the developments noted above before dismissing the 

appeal for failure to prosecute, we cannot conclude that its decision to dismiss constituted 

a proper use of its discretion. Accordingly, we will vacate the District Court’s September 

29 order and remand so that the District Court can decide whether to grant Smiles’s IFP 

motion.

V.

In sum, we will vacate both the District Court’s December 22, 2021 order in 

Appeal I and its September 29, 2022 order in Appeal II, and we will remand these cases 

to the District Court for further proceedings consistent with this opinion. 

8 None of the District Court’s subsequent orders vacated its May 9 order or explicitly 

stated that Smiles was now prohibited from moving to proceed IFP.