In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2770

In the Matter of:    Sheldon Bond,

Debtor.

Appeal of:    Vicki A. Dempsey

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-3146 Richard Mills, Judge.

Argued March 2, 2001--Decided June 20, 2001


  Before Cudahy, Easterbrook, and Rovner,
Circuit Judges.

  Cudahy, Circuit Judge. Vicki Dempsey
represented debtors in four bankruptcy
cases before Central District of Illinois
courts. In each case, Dempsey requested
attorney’s fees in excess of $1,000, the
Central District’s presumptive attorney’s
fee limit for Chapter 13 bankruptcy
cases. However, the bankruptcy court
found that Dempsey failed to justify fees
in excess of the $1,000 limit in any of
her cases, and thus limited her fee
awards to $1,000 in each case. Dempsey
appealed to the district court. Following
a convoluted series of procedural moves
(involving a remand to the bankruptcy
court for clarification and the filing by
Dempsey of two "motions to reopen appeal"
in the district court), the district
court "affirmed" the bankruptcy court’s
fee award by denying Dempsey’s second
motion to reopen appeal.

I.   BACKGROUND

  Two years ago, Dempsey first appeared
before this court to challenge the
Central District’s procedure for awarding
fees to Chapter 13 bankruptcy attorneys.
In In the Matter of Kindhart, 160 F.3d
1176 (7th Cir. 1998) [hereinafter
Kindhart I], Dempsey applied to the
bankruptcy court for--but was denied--
fees in excess of what at the time was an
$800 presumptive fee limit throughout the
Central District./1 The district court
affirmed the $800 fee award, and Dempsey
appealed to this court. Finding the $800
limit an abuse of discretion, this court
reversed and directed the district and
bankruptcy judges of the Central District
to reexamine the manner in which they
awarded fees to Chapter 13 bankruptcy
attorneys. In response to our order, the
district and bankruptcy judges agreed to
raise the Chapter 13 presumptive fee
limit to $1,000; to maintain a uniform
presumptive attorney’s fee limit for
Chapter 13 bankruptcy cases throughout
the district; and to review the
presumptive limit every 24 months. See
Order of the District Court for the
Central District of Illinois at 2 (Dec.
22, 1998). On remand, Dempsey’s fees were
adjusted to reflect the new base fee, but
she still felt short-changed and once
again appealed to this court. We held
that the new $1,000 fee limit was "fair
and reasonable," and thus did not modify
Dempsey’s new fee award. See In the
Matter of Kindhart, 167 F.3d 1158, 1159
(7th Cir. 1999) [hereinafter Kindhart
II].

  Armed now with four new cases, Dempsey
attempts to challenge once again the
Central District’s presumptive fee limit.
In each of these cases, Dempsey filed
motions in the bankruptcy court seeking
fees that exceeded the new $1,000 limit
by amounts ranging from $166 to $309. In
these motions, Dempsey presented detailed
records of the amount of time she had
spent on each case (totaling
approximately 10 to 12 hours per case),
and reported that she had billed this
time at the rate of $110 per hour.

  Following a hearing on these motions
(which was attended by Dempsey’s partner,
but not by Dempsey herself), the
bankruptcy court ruled that Dempsey had
failed to justify in any of her four
cases a fee in excess of the $1,000
presumptive fee limit. Noting that
Dempsey bore the burden of establishing
the reasonableness of her fees, the
bankruptcy court maintained that it could
not conclude that the $110 hourly rate
was reasonable because "there are
experienced Chapter 13 bankruptcy
attorneys practicing in the Quincy area
whose hourly rate is in the $90 to $100
per hour range." See, e.g., In re
Hatfield, No. 95-72240, slip op. at 6
(Bankr. C.D. Ill. May 7, 1999). Further,
because Dempsey’s cases were some of the
"more simple and straightforward that the
Court and Dempsey have seen," the court
believed that Dempsey "would be
overcompensated by an award of attorney
fees above the $1,000 threshold." Id.
Accordingly, the bankruptcy court limited
Dempsey’s fee to $1,000 in each case.

  Dempsey appealed to the district court.
That court consolidated the four cases
and decided the newly consolidated case
on the briefs submitted by Dempsey and
the trustee. On December 8, 1999, the
district court entered the following
judgment in each case:

IT IS ORDERED AND ADJUDGED pursuant to
Order entered by The Honorable Richard
Mills, the judgment of the bankruptcy
court for the Central District of
Illinois is VACATED, and this case is
REMANDED to the bankruptcy court for an
elaboration and a more detailed
explanation as to why that court denied
Appellant’s motion for approval of
additional fees. Case Closed.

Dempsey v. United States Bankruptcy Court
(In re Hatfield), No. 99-3144 (Bankr.
C.D. Ill. Dec. 8, 1999); Dempsey v.
United States Bankruptcy Court (In re
Huber), No. 99-3145 (Bankr. C.D. Ill.
Dec. 8, 1999); Dempsey v. United States
Bankruptcy Court (In re Bond), No. 99-
3146 (Bankr. C.D. Ill. Dec. 8, 1999);
Dempsey v. United States Bankruptcy Court
(In re Epperson), No. 99-3147 (Bankr.
C.D. Ill. Dec. 8, 1999).

  More than four months after the district
court’s remand, the bankruptcy court
still had not entered a new judgment.
Frustrated by the delay, Dempsey filed a
"motion to reopen appeal"/2 in the
district court on April 20, 2000, asking
that the district court allow her
requested fees in their entirety,
establish local bankruptcy attorney’s fee
rules for all judges in the Central
District and provide any other
appropriate relief. Before the district
court could address the merits of
Dempsey’s motion to reopen appeal, the
bankruptcy court ruled.

  Not surprisingly, the bankruptcy court
once again limited Dempsey’s fees to
$1,000 per case. In addition to restating
its prior reasons for denying Dempsey’s
excess fee requests, the bankruptcy
court’s new opinion set forth numerous
general conclusions, but few specific
factual findings. Among the more specific
new findings were the following. First,
the court complained that Dempsey had
only produced an "unverified itemization
setting forth her time expended and
services rendered." In re Bond, et. al,
Nos. 97-74395, 98-70007, 95-72240, 98-
73553, slip op. at 2 (Bankr. C.D. Ill.
Apr. 27, 2000). Second, the bankruptcy
court found that Dempsey failed to
adequately delegate non-legal work to
non-attorney members of her staff. As a
result, the bankruptcy court believed
that at least some of the hours expended
by Dempsey should have been billed at a
staff rate, rather than at her higher
attorney’s rate. Third, the bankruptcy
court alleged that "Dempsey ha[d] never
filed an application to be hired by the
estate as required by Section 330 of the
Bankruptcy Code . . . . Of more concern,
she ha[d] never sought authority of the
Court to represent the estate post-
confirmation." Id. at 12. From the
record, it appears that Dempsey was given
no opportunity to respond to these
concerns (although some of them were
raised for the first time in the
bankruptcy court’s second opinion) before
the bankruptcy court once again denied
her fees.

  Because the bankruptcy court finally
ruled before the district court could
address Dempsey’s motion to reopen
appeal, the district court denied
Dempsey’s motion to reopen appeal as
moot. However, the district court
directed Dempsey in an order dated May 2
to file another motion (but providing no
time limit for doing so) if "she
continues in her position that these
cases should be reopened." In re Bond,
No. 99-3146, slip op. at 2 (C.D. Ill. May
2, 2000). In accordance with this
directive, Dempsey filed a second motion
to reopen appeal in the district court on
May 11, 2000, more than 10 days after the
bankruptcy court entered its final order.
This motion, which sought to have the
district court review the bankruptcy
court’s decision to deny her fees, is
best viewed as a short appellate brief,
or perhaps, if generously construed, a
notice of appeal. Finding the case "ripe
for adjudication," In re Bond, 249 B.R.
891, 894 (C.D. Ill. June 29, 2000), the
district court denied Dempsey’s second
motion to reopen appeal on the merits,
effectively affirming the bankruptcy
court’s final order. Dempsey now appeals
to this court.

II.    DISCUSSION

  On appeal, Dempsey argues that the
district court erred by refusing to award
the requested fees. Before we are able to
address the merits of Dempsey’s argument,
we must first address the intervenor
trustee’s contention that we may not
exercise jurisdiction over this cause--a
problem that arises out of the convoluted
procedure that Dempsey used (partially at
the district court’s direction) to appeal
the bankruptcy court’s decision on
remand. We therefore begin with the
"always stimulating and hopefully
fruitful consideration of technical
jurisdictional points." Fruehauf Corp. v.
Jartran, Inc. (In re Jartran, Inc.), 886
F.2d 859, 866 (7th Cir. 1989).

A.    Jurisdiction

  Under 28 U.S.C. sec. 158, a party may
appeal the final judgment of a bankruptcy
court to an appropriate district court.
However, in order to perfect the appeal
(and provide the district court with
jurisdiction), the party must file a
notice of appeal with the clerk of the
bankruptcy court within 10 days of the
bankruptcy court’s decision. See Fed. R.
Bankr. P. 8002(a). Rule 8002(a) describes
conditions precedent that are "mandatory
and jurisdictional." See Stelpflug v.
Federal Land Bank of St. Paul, 790 F.2d
47, 49 (7th Cir. 1986); see also In re
Schultz Mfg. Fabricating Co., 956 F.2d
686, 689 (7th Cir. 1992) (district court
deprived of jurisdiction when appellant
fails to file timely notice of appeal).

  In this case, Dempsey and the district
court appear to have agreed to waive the
formalities of the Federal Rules of
Bankruptcy Procedure. When Dempsey
appealed the bankruptcy court’s decision
following the district court’s remand,
she did not do so by filing a notice of
appeal in the bankruptcy court within 10
days of the court’s decision. Instead,
she filed a motion to reopen appeal in
the district court, more than 10 days
after the bankruptcy court’s decision. In
response to this novel procedure, the
intervenor trustee argues that the
district court did not have jurisdiction
over Dempsey’s appeal because her motion:
(1) was not filed with the clerk of the
bankruptcy court, (2) was not a notice of
appeal, and (3) even if it was a notice
of appeal, was not filed within the 10-
day window provided by Rule 8002(a) (nor
did Dempsey seek an extension of the
filing time under Rule 8002(c)). Because
any one of these alleged defects can
deprive the district court of
jurisdiction, we devote the bulk of our
discussion to the issue of timeliness, as
did the parties in their briefs.

  Dempsey attempts to refute the trustee’s
argument by noting that when the district
court denied her first motion to reopen
appeal, it explicitly told her to file
another motion if "she continues in her
position that these cases should be
reopened." In light of this ruling,
Dempsey argues that the district court
properly exercised jurisdiction over her
appeal because it specifically assured
her in its ruling on her first motion
that she could file a new motion if she
was dissatisfied with the bankruptcy
court’s decision on remand. Even if the
district court could not derive
jurisdiction from its assurances to
Dempsey, she believes that another, inde
pendent, basis for jurisdiction lies in
the fact that the district court
implicitly retained jurisdiction over the
case when it remanded the case to the
bankruptcy court for further elaboration.
We address, and reject, these arguments
in turn.


  1.   The "Unique Circumstances" Doctrine

  Dempsey’s first argument reduces to a
claim that the happenings below call for
application of "a narrow exception to the
general rule prohibiting an untimely
appeal . . . known as the ’unique
circumstances’ doctrine." Varhol v.
National R.R. Passenger Corp., 909 F.2d
1557, 1561 (7th Cir. 1990) (en banc). The
unique circumstances doctrine was first
recognized in Harris Truck Lines, Inc. v.
Cherry Meat Packers, Inc., 371 U.S. 215
(1962), which held that a court of
appeals should defer to a district
court’s finding of excusable neglect
under then-Federal Rule of Civil
Procedure 73(a) when a party relies on
the district court’s erroneous extension
of time to file a notice of appeal. Two
years later, the doctrine was extended by
Thompson v. INS, 375 U.S. 384 (1964), in
which the Supreme Court held that "unique
circumstances were present because the
district court had [erroneously] ruled
that the motion for a new trial was filed
in ’ample time’ and the party, relying on
that determination, believed that the
time for taking an appeal would not
continue to run pending final disposition
of the motion." 4A Charles Alan Wright &
Arthur R. Miller, Federal Practice and
Procedure sec. 1168 at 501 (2d ed. 1987).

  Subsequent Supreme Court decisions have
narrowed the unique circumstances
doctrine to the point where its continued
vitality is in question. See, e.g.,
Varhol, 909 F.2d at 1562. Nonetheless,
the doctrine survives, although we only
apply it as follows: "when a party
performs ’an act which, if properly done,
postponed the deadline for filing an
appeal,’ and the party relied on the
district court’s conclusion that the act
had been properly done, the appeal is
timely if filed within the mistaken new
deadline." Varhol, 909 F.2d at 1562
(quoting Thompson, 375 U.S. at 387). In
addition, the doctrine applies only when
a party has received "specific assurance
by a judicial officer" that the necessary
act has been properly done. Osterneck v.
Ernst & Whinney, 489 U.S. 169, 179
(1989).

  Here, the "unique circumstance" relied
upon by Dempsey is the district court’s
order denying her first motion to reopen
appeal. As noted, the order contains one
sentence which states that the district
court is denying Dempsey’s first motion
to reopen appeal, but that she can file
another motion if "she continues in her
position that these cases should be
reopened." In light of Green v. Bisby,
869 F.2d 1070, 1072 (7th Cir. 1989),
which held that a minute order does not
constitute an affirmative representation,
it is difficult to interpret the one
sentence in the district court’s order
here as the kind of "specific assurance
from a judicial officer" that Osterneck
contemplated as allowing for an exception
to otherwise strict notice of appeal
rules. This is especially true because
Dempsey--unlike the parties in other
"unique circumstance" cases--did not even
request an extension of time from the
court./3 Thus, the district court did
not enter its order with the intent of
assuring Dempsey of the proper timing for
filing an appeal.

  More importantly, even if one sentence
of a judge’s order could generally
constitute an assurance that a motion to
reopen appeal would adequately substitute
for a proper notice of appeal, the order
at issue here does not contain any
"specific assurance" regarding the
timeliness of Dempsey’s action. Instead,
the order merely states that Dempsey’s
"[first] motion [to reopen appeal] is
moot and that if she continues in her
position that these cases should be re-
opened, she must file a new motion." It
is thus difficult to conclude that the
district court intended to grant Dempsey
an extension of time and that Dempsey
relied on this extension, as required by
Varhol. Instead, the fact that the
district court’s order suggested no time
limit might have caused Dempsey to look
at the Federal Rules of Bankruptcy
Procedure, where she might have
discovered the proper procedure for
filing a valid notice of appeal.
Accordingly, the district court’s order
does not constitute the type of specific
assurance that triggers the "unique
circumstances" doctrine.


  2.   Retained Jurisdiction

  Dempsey also argues that the district
court retained jurisdiction over this
cause when it first remanded to the
bankruptcy court for an elaboration of
the bankruptcy court’s reasoning. This
would be an easy argument to make had the
district court explicitly stated that it
was retaining jurisdiction during the
proceedings on remand, the method used by
most courts in this circuit when they
wish to exert a continuing supervisory
role over a dismissed case. See, e.g.,
Kindhart I, 160 F.3d at 1179. Here,
however, the court took the road less
traveled, acting as if it had retained
jurisdiction even though nothing in the
court’s actions at the time it remanded
Dempsey’s case really indicated an intent
to do so. We must thus determine whether
the district court somehow implicitly
retained jurisdiction over Dempsey’s
case.

  Of most help to our determination is
McCall-Bey v. Franzen, 777 F.2d 1178 (7th
Cir. 1985). In McCall-Bey, a prison
inmate’s case was dismissed with
prejudice after the inmate entered into a
settlement agreement with defendant
prison officials. Subsequently, the
inmate complained to the district court
that the settlement agreement was not
being adhered to, and the district court
ruled on the merits. On appeal, we held
that the district court only had
jurisdiction to entertain the inmate’s
complaint if the district court had
exercised a "deliberate retention of
jurisdiction." Id. at 1190.

  Unfortunately, the district court in
McCall-Bey did not explicitly retain
jurisdiction when it dismissed the
inmate’s suit. Nonetheless, we found that
the district court had retained
jurisdiction, employing reasoning that is
worth quoting at some length:

[W]e know that settlements between
prisoners and prison officials often
contemplate a continuing supervisory role
for the federal court[,] and we know that
when the plaintiff wrote his letter to
the judge, the judge forthwith
characterized it as a petition to enforce
the agreement and proceeded to do so. The
judge would not have been likely to grant
such a petition in a case over which he
had no jurisdiction because he had
dismissed the case outright months
earlier. His response is therefore some
evidence that he had indeed intended to
make his dismissal, though outright in
form, conditional in substance . . . .

Id. at 1189. Thus, two factors primarily
motivated our finding in McCall-Bey: (1)
the continued role for the court that was
contemplated after dismissal and (2) the
court’s acting as if it had retained
jurisdiction./4 Because these factors
con-stitute the bare minimum requirements
for a finding of retained jurisdiction,
see id., both factors must be present for
a district court to implicitly retain
jurisdiction.

  Here, the McCall-Bey conditions are not
completely satisfied. Unlike settlement
agreements, remands for clarification do
not necessarily contemplate further
proceedings at the appellate level. For
example, we have stated that when a
district court finds that the Social
Security Administration has failed to
articulate a basis for its decision and
remands to the agency to rectify this
deficiency, the hope is that the remand
order is sufficiently definitive to
"enable the dispute to be finally
resolved on remand" without recourse to
another appeal. Richmond v. Chater, 94
F.3d 263, 268 (7th Cir. 1996); see also
Forney v. Apfel, 524 U.S. 266, 270 (1998)
(agreeing with court of appeals’
determination that "it would be ’error
for the district court to attempt to
retain jurisdiction’ after remanding the
case" for further proceedings pursuant to
sentence four of 42 U.S.C. sec. 405(g)).
The district court clearly entertained a
similar hope here. At the time it
remanded Dempsey’s cases to the
bankruptcy court, the district court
vacated the bankruptcy court’s original
judgment, leaving open the possibility
(however remote) that the bankruptcy
court would rule in Dempsey’s favor on
remand. Further, the district court
declined to entertain Dempsey’s first
motion to reopen appeal even though the
bankruptcy court had ruled against
Dempsey on remand, asking her to file a
second motion to reopen appeal only if
she continued to disagree with the result
below. Thus, while the district court’s
ruling on the merits in response to
Dempsey’s second motion to reopen appeal
does at least partially indicate a belief
that it had retained jurisdiction, the
balance of the district court’s actions
do not rise to the kind of "deliberate
retention of jurisdiction" that must be
shown when a court fails to explicitly
retain jurisdiction at the time it
remands a case.

B.   Further Matters

  Because the district court erroneously
asserted jurisdiction over this cause,
the merits of Dempsey’s appeal are not
before us. Nonetheless, the happenings
below raise several important concerns.
Some of these concerns are so fundamental
that we conclude by briefly touching on a
few of them.

  First, even if we had reached the merits
of Dempsey’s appeal, we would likely have
upheld the lower courts’ decision to deny
her request for excess fees. Attorney fee
awards are reviewed for an abuse of
discretion, see Munson v. Milwaukee Bd.
of Sch. Dirs., 969 F.2d 266, 269-70 (7th
Cir. 1992), and it would have been
difficult to conclude that the lower
courts abused their discretion by
limiting Dempsey’s fees in these cases,
especially in light of the valid concerns
raised by the bankruptcy and district
courts about the propriety of Dempsey’s
requests. For example, Dempsey billed all
of the work she did in connection with
each case--including work that should
have been done by her non-legal staff--at
her hourly rate. As noted by both the
bankruptcy judge and the district court
judge, attorneys may not bill non-legal
tasks (such as typing) at the rate
commanded by an attorney, and it was
inappropriate for Dempsey to do so. See,
e.g., In re Wildman, 72 B.R. 700, 727
(Bankr. N.D. Ill. 1987). Accordingly,
regardless of whatever problems existed
with the Central District’s handling of
Dempsey’s fee request, Dempsey’s request
had its own share of problems that would
have prevented us from finding an abuse
of discretion in the Central District’s
decision to deny her some of her
requested fees.

  However, in spite of Dempsey’s failure
to obtain the fees she requested, we note
that she has set forth several reasonable
arguments regarding the manner in which
her fee requests were handled. For
example, the bankruptcy court never
provided her with an opportunity to
address its concerns with her billing
methods prior to ruling on her request,
choosing instead to surprise her with
these concerns in its final opinion (by
which time Dempsey could no longer rebut
the bankruptcy court). In its final
opinion, the bankruptcy court makes much
of the fact that Dempsey sent her partner
in her stead at the hearing on attorney’s
fees, but Dempsey’s partner was just as
capable of hearing the bankruptcy court’s
concerns as was Dempsey. The bankruptcy
court did not raise any concerns with
Dempsey’s partner, and Dempsey’s partner
thus rested on the motions, a perfectly
understandable decision given that no
one-- not the bankruptcy court, not the
trustee, not any of the debtors--had
objected to Dempsey’s fee request.
Because of this treatment, Dempsey has
requested that we require the Central
District to adopt the rule of NAACP v.
City of Evergreen, Ala., 812 F.2d 1332
(11th Cir. 1987). In NAACP, the Eleventh
Circuit held that a court "should give
the [fee] applicant an adequate
opportunity to respond to the court’s
concerns regarding the fee application
and to correct perceived inadequacies in
that application before making its
decision. This is particularly necessary
in the situation when the fee application
is unopposed." 812 F.2d at 1338. We agree
that this seems to be a useful approach
and suggest that the judges of the
Central District bear it in mind when
deciding future fee applications.

  Also puzzling is the bankruptcy court’s
characterization of Dempsey’s signed fee
application as unverified. The following
reasoning is apposite:

The Bankruptcy Rules neither require nor
provide for the verification of fee
applications. Compare Bankruptcy Rule
2016 with Bankruptcy Rule 9011(b). See
also former Bankruptcy Rules 219(a) and
911(b). Nonetheless, the practice has
developed in this and other jurisdictions
of submitting verified applications for
allowance of compensation and
reimbursement of expenses. A
verification, as used in connection with
fee applications in bankruptcy cases, is
nothing more than a confirmation of the
truth and correctness of the time records
submitted to the Court. Its object is to
assure the good faith and authenticity of
those records. A verification is not a
substitute for testimony in support of a
contested fee application, nor does it
limit the Court’s inquiry as to the
services rendered or reasonableness of
the fee sought. In this Court’s view, the
signature of the attorney or other
professional who submits a fee
application constitutes a certificate by
him of the correctness of his time
records of services actually rendered.
See Bankruptcy Rule 9011(a). A
verification is not required in order to
impress upon an attorney’s conscience the
necessity of truthfulness in the matters
set forth in the fee application.

In re Jensen-Farley Pictures, Inc., 47
B.R. 557, 581-82 (Bankr. D. Utah 1985).
Accordingly, Dempsey’s signature on her
fee application ought to suffice for the
purpose of establishing the truthfulness
of her billing records. Of course, the
bankruptcy court may question Dempsey (or
her partner) regarding her records, but
the fact that her submitted records were
unverified ought not, on its own, be
fatal to Dempsey’s fee application.

  We are perhaps most concerned that the
Central District seems not to be adhering
to its own bankruptcy fee order, which we
approved in Kindhart II. As noted, that
order required the Central District to
establish a presumptive fee limit that
would be uniform throughout the district
and reviewed every two years. The Central
District does not appear to be adhering
to either of these conditions. Dempsey
represents that, at the time she filed
her initial brief in this matter, the
courts in Danville and Peoria had already
raised their presumptive fee limits to
$1,500. With the Springfield court’s
limit apparently still at $1,000, the
Central District is not applying a
uniform presumptive fee limit in each of
its bankruptcy courts. In addition,
Dempsey represented at oral argument
that, while she was not entirely certain,
she believed the judges of the Central
District had not met in December or
thereabouts to review the $1,000
presumptive fee limit, as mandated by the
order’s promise to review the fee limit
every two years. We noted in Kindhart II
that "[i]t can be expected that the
judges will consider any future
bankruptcy fee issues which may arise
from time to time, including those
mentioned by appellant in her response,
and, if appropriate, will make any needed
adjustments." 167 F.3d at 160. We
continue to hold to this expectation and
trust that the Central District will act
quickly to comply with its own order.

  We conclude by requesting that Dempsey
and the judges attempt to reach a truce,
for it is apparent from both parties’
documents that neither appropriately
respects the other. As we hope we have
shown, both parties have raised valid
points during the course of this
litigation. There was thus no need for
Dempsey to threaten the district court
with "another trip to Chicago" if it did
not reverse the bankruptcy court. See
Memorandum in Support of Motion to Reopen
Appeal and Response to Bankruptcy Court’s
Order of April 27, 2000 at 2 (May 11,
2000). We are sure that the judges of the
Central District do not enjoy--nor do
they deserve--these sorts of threats, no
matter how aggrieved Dempsey feels by
their rulings. Nonetheless, Dempsey’s
frustration is understandable given the
Central District’s apparent inability to
follow its agreed-upon method of
determining fees. We trust that these
passions may ebb once Dempsey begins
billing her services at appropriate rates
and the judges before whom she appears
adhere to their own order.
III. Conclusion

  Because the district court lacked
jurisdiction to entertain Dempsey’s
appeal, we vacate the district court’s
decision to deny her second motion to
reopen appeal, dated May 11, 2000, and
remand with instructions to dismiss the
motion for lack of jurisdiction.

Vacated and Remanded,
with Instructions.

FOOTNOTES

/1 The Central District holds court in six places:
Champaign/ Urbana, Danville, Peoria, Quincy, Rock
Island and Springfield. However, the District
maintains bankruptcy courts only inDanville,
Peoria and Springfield.

/2 Dempsey’s use of motions to reopen appeal is odd,
and her motions are difficult to characterize,
due in no small part to the fact that none of her
motions cites a statute or procedural rule that
grants a party the right to request the reopening
of an appeal. Our best guess is that Dempsey was
relying upon 11 U.S.C. sec. 350(b), which allows
a case to be reopened "in the court in which such
case was closed to administer assets, to accord
relief to the debtor, or for other cause." See
also Fed. R. Bankr. P. 5010. However, a review of
sec. 350(b), and the case law interpreting it,
shows that it is an inappropriate vehicle for the
purposes for which Dempsey was apparently employ-
ing it. Accordingly, we treat Dempsey’s motions
to reopen appeal as what they really were. Thus,
her first motion to reopen appeal, which request-
ed that the district court enforce the terms of
its remand, is roughly equivalent to a writ of
mandamus issued by an appellate court.

/3 Even if Dempsey had requested an extension of
time from the district court, she would have been
in error; Federal Rule of Bankruptcy Procedure
8002(c) only allows the bankruptcy court to grant
extensions of time for the filing of notices of
appeal.

/4 We note that McCall-Bey may be providing too
lenient a standard. Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 380-81 (1994), appears to
require more than McCall-Bey did from a district
court wishing to retain jurisdiction--in particu-
lar, implying that the court’s retention must be
express (either a statement in the judgment, or
the incorporation into the judgment of terms
drafted by the parties). However, because the
facts of this case do not satisfy even the more
lenient McCall-Bey standard, we need not decide
whether or how Kokkonen modifies McCall-Bey.
