Unpublished Dispositionin Re: Merritt Dredging Company, Debtor.united States Fidelity & Guaranty Company; Lumbermensmutual Casualty Company, a Kemper Group Insurancecompany, Plaintiffs v. the South Carolina National Bank, Successor by Merger Tofirst National Bank of South Carolina,defendant-appellant.mid-stream Fuel Service, Inc.; Williams-mcwilliams Company;hendry Corporation; Fuel Services, Inc.,defendant-appellees.merritt Dredging Company; Affolter Contracting Company;caldwell Culvert Company; Al-fla Plastics, Inc.; Pitalo'shardware; Berwick Bay Oil Company; Kenner Marine Andmachinery, Inc.; United States Army Corps of Engineers, Defendants.in Re: Merritt Dredging Company, Debtor.united States Fidelity & Guaranty Company; Lumbermensmutual Casualty Company, a Kemper Group Insurancecompany, Plaintiffs v. United States Army Corps of Engineers, Defendant-appellant.mid-stream Fuel Service, Inc.; Williams-mcwilliams Company;fuel Services, Inc.; Hendry Corporation,defendant-appellees.merritt Dredging Company; Affolter Contracting Company;caldwell Culvert Company; Al-fla Plastics, Inc.; Pitalo'shardware; Berwick Bay Oil Company; Kenner Marine Andmachinery, Inc.; the South Carolina National Bank,successor by Merger to First National Bank of Southcarolina, Defendants, 803 F.2d 714 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 803 F.2d 714 (4th Cir. 1986) Submitted July 10, 1986. Decided Oct. 6, 1986

Before HALL, ERVIN and WILKINSON, Circuit Judges.

PER CURIAM.


(Thomas E. McCutchen, Whaley, McCutchen, Blanton & Rhodes; Mark S. Sharpe, Sinkler, Gibbs & Simons, for Appellant in No. 86-2569. John Peter Schnitker, Civil Division, United States Department of Justice; Heidi M. Solomon, Office of the United States Attorney, for Appellant in No. 86-2570. John Randolph Pelzer, Pelzer & Algar, PA; Matt Farley for Appellees Mid-Stream Fuel Service, William-McWilliams Co., Fuel Services, Inc. Gordon D. Schreck, Buist, Moore, Smythe & McGee, for Appellee Hendry Corporation.)

PER CURIAM:

Before the Court are motions to dismiss these appeals as interlocutory filed by appellees Mid-Stream Fuel Service, Inc.; Williams-McWilliams Company; Fuel Services, Inc.; and Hendry Corporation (the "Subcontractors"). The appellants, South Carolina National Bank (the "Bank") and the United States Army Corps of Engineers (the "Corps"), have appealed an order of the district court reversing orders of the bankruptcy court and remanding the case "for further hearings." We agree with the appellees that the district court order is not appealable.

Merritt Dredging Company, the debtor, provided dredging services to the federal government. Merritt's sureties instituted an adversary action to interplead the Subcontractors, the Bank and the Corps based on an alleged violation of the Miller Act. The interpleader action relates to contract funds retained by the Corps and received by the Bank. The Subcontractors cross-claimed against the Bank and the Corps, seeking to establish claims against those funds. These cross-claims are the only claims remaining in the case.

The bankruptcy court dismissed the cross-claims for lack of subject matter jurisdiction and, in the alternative, ruled that it should abstain from adjudicating the Cross-Claims. The district court found that the bankruptcy court had jurisdiction of the cross-claims and further ruled that abstention was not appropriate. The case was remanded to the bankruptcy court.

Title 28, United States Code, Sec. 158(a) provides inter alia for appeals to the district court from final judgments, orders and decrees of bankruptcy judges. The finality of the bankruptcy court's orders is not at issue. Section 158(d) provides that "courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section." The Bank and the Corps have urged us to consider the district court's order remanding the case a final order within the meaning of Sec. 158(d). The basis of their position is language within the district court's order which, they argue, finally resolves all issues regarding the Bank and the Corps. We disagree.

The district court's order included references to its conclusion that the subcontractors have an equitable lien in the funds retained by the Corps and received by the Bank. These references, however, appear in the context of the district court's discussion of sovereign immunity and of the jurisdictional issues in the case. Contrary to the assertions of the Bank and the Corps, we are not persuaded, for several reasons, that the district court's language was intended to be a final disposition of the case on the merits. First, the district court's discussion did not indicate either the amount or the priority of each of the Subcontractors' equitable liens; the district court simply stated that the lien exists and that, as a class, the Subcontractors' claims had priority over those of the Bank and the Corps. Second, the district court remanded the case "for further hearings." (Emphasis added.) That disposition indicates that factual issues remain to be resolved, rather than simply the entry of judgment. Finally, the Bank and the Corps have noted in their memoranda filed herein that the district court's discussion of the Subcontractors' equitable lien appears without a factual record. We believe that the absence of such a record is further evidence that the district court's order was intended to remand the case for development of a record, which would eventually be subject to review by this Court.

Accordingly, because the subject order is not final, we grant the appellees' motions and dismiss the appeals. We dispense with oral argument, as the materials before this Court indicate it would not significantly aid the decisional process.

DISMISSED.

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