21 F. App'x 113

4th Cir.

2001

James MCLAUGHLIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-6819

United States Court of Appeals, Fourth Circuit

Oct. 15, 2001

19 Fed. Appx. 113

James McLaughlin, pro se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, VA, for appellee.

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

PER CURIAM.

OPINION

James McLaughlin seeks to appeal the district court‘s order denying his 28 U.S.C.A. § 2255 (West Supp.2001) motion. We remanded the case for a factual determination of when McLaughlin placed his notice of appeal in the prison mail system. The Government produced a log indicating the date was May 4, 2000. McLaughlin did not challenge the determination. We find the district court did not err in determining the date. We dismiss the appeal for lack of jurisdiction because McLaughlin‘s notice of appeal was not timely filed.

Where the United States is a party, parties are accorded sixty days after entry of the district court‘s final judgment or order to note an appeal, see Fed. R. App. P. 4(a)(1), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep‘t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)).

The district court‘s order was entered on the docket on December 1, 1999. McLaughlin‘s notice of appeal was placed in the institution‘s internal mail system on May 4, 2000. Because McLaughlin failed to file a timely notice of appeal or to obtain an extension for reopening of the appeal period, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.

In re Anitra Banks MASSEY, Debtor. Anitra Banks Massey, a/k/a Anitra Sharmeen Banks, Plaintiff-Appellant, v. Robert E. Hyman, U.S. Trustee; Gregg R. Nivala, U.S. Trustee; Henrico Federal Credit Union, Parties in Interest, and National Association of Consumer Bankruptcy Attorneys, Amicus Curiae.

No. 01-1426

United States Court of Appeals, Fourth Circuit

Oct. 17, 2001

19 Fed. Appx. 113

Charles H. Krumbein, Jason M. Krumbein, Charles H. Krumbein & Associates, Richmond, VA, for appellant.

John Rao, Elizabeth Renuart, National Consumer Law Center, Inc., Boston, MA, for amicus curiae.

Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.

OPINION

PER CURIAM.

Anitra Banks Massey appeals from the district court order affirming the order of the bankruptcy court denying confirmation of her proposed Chapter 13 bankruptcy plan and continuing the case to allow Massey to file an amended plan. We dismiss the appeal for lack of jurisdiction because the order is not appealable.

District courts have jurisdiction over appeals from final orders entered by bankruptcy courts. See 28 U.S.C.A. § 158(a) (West Supp.2001). The courts of appeals, in turn, have jurisdiction to hear appeals from “final decisions, judgments, orders, and decrees entered under” 28 U.S.C.A. § 158(a). 28 U.S.C.A. § 158(d) (West 1993). “A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (internal quotation marks omitted).

An order denying confirmation of a proposed Chapter 13 plan, without also dismissing the underlying petition or proceeding, is not final for purposes of appeal. Lewis v. United States, Farmers Home Admin., 992 F.2d 767, 772-73 (8th Cir. 1993); In re Szekely, 936 F.2d 897, 899 (7th Cir.1991); In re Simons, 908 F.2d 643, 644-45 (10th Cir.1990). Because the bankruptcy court‘s order denying confirmation and continuing the case was not a final order under § 158(a), the district court was without jurisdiction to hear the appeal. 28 U.S.C.A. § 158(a). Moreover, because the courts of appeals have jurisdiction over appeals from final orders entered under § 158(a), and the district court order herein appealed was not a final order entered under § 158(a), this court lacks jurisdiction over the appeal. See 28 U.S.C.A. § 158(d); Lewis, 992 F.2d at 773; Szekely, 936 F.2d at 899; Simons, 908 F.2d at 644-45.

Accordingly, we dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.