In Re Stephen Kurt Vogelsang, Debtor.stephen Kurt Vogelsang, Appellant, v. United Student Aids Funds, Appellee, 892 F.2d 85 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 85 (9th Cir. 1989)

Submitted Aug. 22, 1989. *Submission Vacated Aug. 31, 1989. Resubmitted Sept. 12, 1989. Decided Dec. 11, 1989


Before CHOY, ALARCON and CANBY, Circuit Judges.


MEMORANDUM** 

Stephen Kurt Vogelsang appeals pro se from the Bankruptcy Appellate Panel's (BAP) dismissal of his appeal of the bankruptcy court's dismissal of his action to determine dischargeability of student loans.

On August 1, 1986, Vogelsang filed a Chapter 7 bankruptcy petition in the Bankruptcy Court of the District of Arizona. Vogelsang also filed complaints seeking to discharge student loans guaranteed by the Higher Education Assistance Foundation (HEAF) and the United Student Aids Fund (USAF). Trial was set for February 4, 1987.

In December 1986, Vogelsang moved to Louisiana and filed a motion for a change of venue of his bankruptcy proceeding to the Bankruptcy Court for the District of Louisiana. The motion was subsequently denied by the Bankruptcy Court for the District of Arizona. Vogelsang was neither present nor represented at trial in Arizona on February 4, 1987. The bankruptcy court dismissed his complaints with prejudice pursuant to Bankruptcy Rule 7041 and Fed. R. Civ. P. 41(b) stating that such was an adjudication of Vogelsang's claims on the merits. The above order was entered on the docket on March 2, 1987.

On February 19, 1987, Vogelsang filed notice of appeal with the Bankruptcy Court for the Eastern District of Louisiana. On June 5, 1987, the Bankruptcy Court for the Eastern District of Louisiana dismissed this appeal with prejudice.

Vogelsang filed a notice of appeal in the Bankruptcy Court for the District of Arizona on May 26, 1987, over 60 days after the entry of the final judgment. Vogelsang failed to pay the required filing fee. This matter was transferred to the BAP, which issued a conditional order of dismissal of August 6, 1987. The BAP requested that Vogelsang show cause why his appeal should not be dismissed. On March 4, 1988, the BAP dismissed Vogelsang's appeal for lack of jurisdiction due to his untimely notice of appeal and his failure to pay the required filing fees.

Vogelsang contends that the BAP erred in dismissing his appeal for lack of jurisdiction. We affirm because we conclude that under 28 U.S.C. § 158 a timely appeal must be filed in the district court for the judicial district in which the bankruptcy judge is serving.

* STANDARD OF REVIEW

We review decisions of the BAP independently. In re Windmill Farms, Inc., 841 F.2d 1467, 1469 (9th Cir. 1988).

II

FAILURE TO FILE TIMELY NOTICE OF APPEAL

Vogelsang asserts that because he first filed a timely notice of appeal in the Eastern District of Louisiana, his second notice of appeal to the District of Arizona was timely.

A notice of appeal must be filed within 10 days of the date of the entry of judgment from which an appeal is taken. 11 U.S.C.Bktcy.R. 8002(a). Section 158 further requires that the appeal be filed only in the district court for the judicial district in which the bankruptcy judge is serving. Neither section 8002(a) nor section 158 provides for a tolling of the 10-day period if a notice of appeal is filed in another judicial district. Because Vogelsang filed his notice of appeal in the District of Arizona more than 10 days after the entry of judgment, his appeal was untimely. The BAP properly dismissed his appeal.

III

FAILURE TO PAY FILING FEES

Vogelsang also claims that because he was destitute and unable to pay the required filing fee, the BAP should not have dismissed his appeal for non-payment of the filing fee.

The BAP has jurisdiction to request the payment of filing fees. 28 U.S.C. § 1930(b). There is no evidence in the record that Vogelsang sought leave to proceed in forma pauperis. Dismissal of the appeal for failure to pay the required fees was proper.

IV

UNIQUE CIRCUMSTANCES DOCTRINE

Vogelsang further asserts that because the Clerk of the Bankruptcy Court for the Eastern District of Louisiana accepted his notice of appeal for filing, the unique circumstances doctrine applies.

The unique circumstances doctrine applies when a party delays filing a notice of appeal in reliance on judicial action that indicated the notice of appeal would be timely. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411-12 (9th Cir. 1986). Where applicable, the doctrine allows for an extension of time in which to file the appeal.

There is no evidence in the record that the clerk of the Bankruptcy Court for the Eastern District of Louisiana indicated that the notice of appeal was timely merely by accepting it. "A party has an independent duty to keep informed" concerning the time limits which pertain to his case. Id. at 1412. Because Vogelsang did not justifiably rely on judicial action, the unique circumstances doctrine does not apply in this instance.

V

ATTORNEYS FEES AND COSTS

The request of appellees for double costs and attorneys' fees is denied.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3