Taylor v. United States (In re Taylor)

In re: TIMOTHY R. TAYLOR, Debtor.TIMOTHY R. TAYLOR, Appellant,

v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; OFFICE OF THEINSPECTOR GENERAL; U.S. DEPARTMENT OF EDUCATION;U.S. DEPARTMENT OF JUSTICE, Appellees.

3AP No. EC-11-1512

Bk. No. 98-38409

Adv. No. 11-2356

CAED Case # 2:11-mc-0088 JAM GGH

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

Date: September 13, 2011

Date: September 28, 2011

ORDER (1) DENYING STAY MOTION AND (2) TRANSFERRING IFP

MOTION TO DISTRICT COURT (Response Required)

Before: DUNN and PAPPAS, Bankruptcy Judges.

This appeal has been judicially reviewed.

1. Motion for Stay Pending Appeal.

Appellant filed a motion for stay pending appeal with the BAP on November 7, 2011.

Fed. R. Bankr. P. 8005 requires that a request for stay pending appeal must ordinarily be presented to the bankruptcyjudge in the first instance.

Considerations of orderly procedure require that appellant move for a stay pending appeal in the bankruptcy court before seeking a stay from the BAP. The bankruptcy court has continuing jurisdiction to determine motions for stay pending appeal. See Ho v. Dai Hwa Elecs. (In re Ho), 265 B.R. 603 (9th Cir. BAP 2001).

Accordingly, the motion for stay pending appeal is hereby ORDERED DENIED without prejudice to re-filing if it is demonstrated that a motion for stay pending appeal was presented to the bankruptcy judge and was either denied or not acted upon in a timely manner.

2. Motion for Fee Waiver.

This appeal is properly before the Bankruptcy Appellate Panel under 28 U.S.C. § 158. As no party filed a timely election to have the appeals heard by the United States District Court under 28 U.S.C. § 158(c), jurisdiction lies with the Panel.

On September 21, 2011, appellant filed in the bankruptcy court a motion for leave to proceed in forma pauperis with respect to this appeal ("IFP Motion"). The IFP Motion was forwarded to the Panel and received on October 4, 2011.

Under the holding of Perroton v. Gray (In re Perroton), 958 F.2d 889 (9th Cir. 1992) and Determan v. Sandoval (In reSandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995), the Panel has no authority to grant in forma pauperis motions under 28 U.S.C. § 1915(a) because bankruptcy courts are not "court[s] of the United States" as defined in 28 U.S.C. § 451.

However, the district court^* has authority to allow a person to file an appeal without prepayment of the filing fee. See 28 U.S.C. § 1915(a).

Therefore, Appellant's IFP Motion is hereby TRANSFERRED to the United States District Court for the Eastern District of California for the limited purpose of ruling on the IFP Motion.

It is Appellant's responsibility to take all necessary steps to have the IFP Motion considered by the district court within a reasonable period of time.

No later than Thursday, December 8, 2011, appellant must file with the Panel and serve on opposing counsel a written response which includes as an exhibit a copy of the district court's order on the IFP Motion or an explanation of the steps appellant has taken to have the IFP Motion considered by the district court.

For the convenience of the district court, copies of the notice of appeal, the judgment on appeal, and the IFP Motion are attached to this order.

BANKRUPTCY APPEAL TRANSMITTAL FORM

TO: Bankruptcy Appellate Pane! of the Ninth Circuit

125 5. Grand Avenue

Pasadena, CA 91105

FROM: U.S. Bankruptcy Court

Eastern District of California

District Office He. 0972

CAED Case # 2:11-mc-0088 JAM GGH

DATE: 09/22/11

Debtor(s) Name: Tlmolhy Robert Taylor

Bankruptcy Case No. 98-38409-C-7

Adversary Proceeding No. 11-2356-C

Docket Control No. ._

Bankruptcy Judge (who signed Hie order): Christopher M. Klein

Date Notice of Appeal Filed: 9/21/11

Date of Entry of Order Appealed From: 9/19/11

Date Bankruptcy Case Filed: 11/30/98

Date Notice of Appeal and Notice of Referral of Appeal Mailed to Parties: 9/22/11

Filing Fee Paid? (Chart One) [] Yes [√]No Mtn to waive filed 9/21/11

Deputy Clerk BARBARA REYNOLDS

U.S. Bankruptcy Court

EDC 2-950 (Re. 8/10/10)

Timothy Taylor

In Pro Per

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

In re: TIMOTHY R. TAYLOR, Debtor.

Timothy R. Taylor, Plaintiff

v.

U.S. Department Of Health And Human Services, et al., Defendants

Case No. 98-38409-R-7

Chapter 7

Adv. Case No- 11-02356-R

Hearing Date:

Ctrm: 501 Street, Sacramento, CA

TO THIS HONORABLE COURT, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF EDUCATION. U.S. DEPARTMENT OK JUSTICE, AGENTS, ASSIGNS, EMPLOYEES, OFFICERS. ATTORNEY AMD REPRESENTATIVES AND THOSE IN ACTIVE CONCERN OR PARTICIPATION WITH YOUR OR THEM ("Defendants" or "Responding Parties''):

Timothy R. Taylor ("Taylor"), the plainer; appeals under 28 U.S.C. § 158(a) from the judnment, order. or decree of the Chief Judge Christopher Klein of the Bankruptcy Court granting Defendant U.S. DEPARTMENT OF HEALTH AND HUM AM SERVICES, OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF EDUCATION, U.S. DEPARTMENT OF JUSTICE, AGENTS, ASSIGNS, EMPLOYEES. OFFICERS, ATTORNEY AND REPRESENTATIVES AND THOSE IN ACTIVE CONCERN OR PARTICIPATION WITH YOUR OR 1"HEM ("Defendants" or "Responding Parties") Continued Motion 10 Dismiss Case/Proceeding And/Or Motion Judgment on the Pleading filed June 14. 2011, (Docket No. 8) and dismissing the matter Taylor will submit a copy of the entered Order as soon as it becomes available by the Court.

The Entry of Order was filed on September 19, 2011 (docket no. 44,) but me Images of the Order on (he Motions (ducket no. 4-2) and Memorandum of Opinion/Decision (document no. 43) arc not available on PACER and I have not received a copy as of this filing.

The names of all parlies 10 the judgment, order, or decree appealed from and The names, addresses, and telephone numbers of their respective attorneys are as follows:

Timothy Taylor

In Pro Per

Department Of Health and Human Sendee,

Department of Education Office of the Inspector General

and Depart meat of Justice

Jeffrey J. Lodge

U.S. Department of Justice

950 Pennsylvania Averse, NW

Timothy Taylor

TIMOTHY R. TAYLOR, Plaintiff and Appellate

If a Bankruptcy Appellate Panel Service ii authorised to hear this appeal, each, party has a right to have the appeal heard by the district court. The appellant may exercise this right only by filing a separate statement of election at the time of the filing of this notice of appeal- Any other party may elect, within the time provided in 28 U.S.C. § 158(c), to have the appeal heard by the district court.

If a child support creditor or its representative is the appellant, and if the child support creditor or its representative files the from speccified § 304(g) of the Bankruptcy Refrom Act of 1994, no fee is required.

PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and a party to this bankruptcy case or adversary preceeding. My business address is: 531-A North Hollywood Way #114, Burbank, CA 91505

A true and correct copy of the foregoing document described as Notice of Appeal will be served or was served (a) on the judge in chambers in the from and manner required by LBR 5005-2(d); and (b) in the manne indicated below.

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTORNIC FILING ("NEF") - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be the court via NEF and hyperlink to the document. On 9/19/11, I checked the CMECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below.

[] Service information continued

on attached page

II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or served):

On ____, I served the following person(s) and/or entrity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true correct copy thereof in tha sealed enveiope in the United States Mail, first class, postage prepaid《 and/or with an overright mail served as follows. Listing the judge here constitutes that mailing to the judge will be completed to later than 24 hours after the document is filed.

[X] Services information continued

on attached page

III. SERVED BY PERSONAL EDLIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity); Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on Fill Date Document is Filed, I served the following person(s) and/or entity(ies) by personal delivery, or (for these who consented in waiting to such service method), by facsimite transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed.

[] Services information continued

on attached page

I declaer under penalty under the laws of the United States of America that the foregoing is true and correct.

Timothy R. Taylor

Type Name

Timothy R. Taylor

Signature

SERVICE LIST (BY MAIL)

Department of Health and Human Services,

Department of Education, Office of the Inspector General

and Department of Justice

U.S. Department of Justice

UNITED STATES BANKRUPTCY COURT

Eastern District of California

NOTICE OF ENTRY OF ORDERS/JUDGMENT IN AN ADVERSARY PROCEEDING

In re: TIMOTHY R. TAYLOR, Debtor.

Timothy R. Taylor, Plaintiff

v.

U.S. Department Of Health And Human Services, eet al., Defendants

Bankruptcy Case No. 98-38409-R-7

Adversary Proceeding No. 11-02356-R

NOTICE IS HEREBY GIVEN THAT:

An order/judgment was entered on the docker in this adversary proceeding on September 19, 2011. The document number and docket text for this order/judgment are set forth below.

For the Court,

Wayne Blackwelder, Clerk

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF CALIFORNIA

In re: TIMOTHY R. TAYLOR, Debtor.

Bankruptcy Case No. 98-38409-R-7

Adversary Proceeding No. 11-02356-R

CERTIFICATE OF MAILING

The undersigned cleft in the Office of the ...