                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 27 2004
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    In re:

    DONALD E. ARMSTRONG,

             Debtor.                                   No. 02-4106
                                                   (BAP No. UT-02-038)
                                                         (BAP)
    DONALD E. ARMSTRONG,

             Appellant,

    v.

    KENNETH A. RUSHTON, Trustee;
    STEPPES APARTMENTS, LTD.;
    STEVEN R. BAILEY, Trustee;
    UNITED STATES TRUSTEE,

             Appellees.


                          ORDER AND JUDGMENT            *




Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Donald E. Armstrong, a debtor-out-of-possession in his Chapter 11

bankruptcy, appeals the order of the Bankruptcy Appellate Panel (BAP) denying

his election to have his appeal heard in the district court and dismissing his appeal

for failure to pay the filing and docketing fees. We affirm.

      On January 31, 2002, the bankruptcy court confirmed the reorganization

plan in Armstrong’s Chapter 11 proceeding. Armstrong filed an untimely notice

of appeal in the bankruptcy court (BAP case No. 02-011), causing the BAP to

issue a show-cause order why the appeal should not be dismissed for lack of

jurisdiction. In an attempt to remedy the late filing, Armstrong filed a motion in

the bankruptcy court for an extension of time in which to file the notice of appeal.

Citing Bankruptcy Rule 8002(c)(1)(F) which expressly prohibits a bankruptcy

judge from extending the time for filing a notice of appeal when the order

appealed from confirms a plan under 11 U.S.C. § 1129, the bankruptcy court

denied Armstrong an extension. We will refer to this order as the 8002(c)

denial order.




                                         -2-
       Without paying any additional filing fees, Armstrong then filed what he

termed an “amended” notice of appeal in BAP 02-011 in which he sought to add

to that pending appeal an appeal of the 8002(c) denial order as well as an appeal

from a third matter relating to a claims order entered by the bankruptcy court.

Armstrong did not, at the time he filed the “amended” notice of appeal, elect to

have the matters heard by the district court.         See Fed. R. Bankr. P. 8001(e);

28 U.S.C. § 158(c)(1). The BAP construed this “amended” notice of appeal to be

two new notices of appeal and assigned them new appeal numbers: 02-038 for the

appeal of the 8002(c) denial order, and 02-039 for the appeal of the claims order.

By order dated May 10, 2002, the BAP informed Armstrong of its construction of

his “amended” notice of appeal and ordered him to pay the filing and docketing

fees within ten days.

       Instead of paying the fees, Armstrong filed an election to have appeal

No. 02-038 heard in the district court. The BAP docket entry in 02-038 noted that

the election was untimely. On May 22, when Armstrong had not paid the fees as

ordered, the BAP denied the purported election as untimely and dismissed the

appeal for failure to prosecute.

       Armstrong argues that he in fact timely paid the fees but that the

bankruptcy court clerk arbitrarily applied his payment to another pending appeal

for which no fees had yet been paid. This contention springs from the fact that,


                                                -3-
on May 20, 2002, Armstrong did apparently tender a filing fee to the bankruptcy

court but did not indicate to which of his four pending and unpaid-for appeals he

wanted the fee applied. The clerk applied the fee to the oldest of the four pending

appeals, docket number 906, which was the appeal of a clarification order and

which appeal apparently remains pending in the district court. To date,

Armstrong has not paid a filing fee for 00-038, the appeal of the 8002(c) denial

order, or for 00-039, the appeal of the claims matter.

      As for the bankruptcy court clerk’s decision to apply the $105.00 filing fee

to the oldest appeal, we have no problem with that procedure, particularly in light

of the fact that Armstrong did not specify at the time he paid the fee which of his

four pending appeals he wished to pay for. Other than in instances of an abuse of

discretion, which is not present here, the bankruptcy court has full authority to

manage its docket.    Cf. Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp.    ,

296 F.3d 982, 985 (10th Cir. 2002) (discussing district court’s discretion to

manage its docket).

      Bankruptcy Rule 8001(a) requires that the prescribed fee be paid at the time

a notice of appeal is filed. The editors’ comment to that rule, however, notes that,

other than the filing of the notice of appeal itself, the “[o]ther steps to perfect an

appeal should be promptly taken, but untimeliness is not necessarily fatal to the

appeal.” Fed. R. Bankr. P. 8001 cmt. (a) (Norton, 2d ed. at 547). At the grace of


                                           -4-
the BAP, Armstrong was given until May 20, 2002, to file the fee for the

“amended” notice of appeal he had filed on April 26. By May 22, he had still not

paid the fee. There is no authority for Armstrong’s “mail rule” under which he

argues he had until May 23 to pay the fee. Bankruptcy Rule 9006(f) does not

apply here because there is no service involved in the payment of a filing fee.

See Fed. R. Bankr. P. 9006(a) (explaining computation of time in bankruptcy

courts). The BAP was well within its authority to dismiss appeal No. 02-038

for failure to prosecute.

      With regard to the notice-of-election issue, Armstrong argues that, because

the BAP unexpectedly construed his “amended” notice of appeal as two new

appeals, he was not able to file the notice of election when he filed the

“amended” notice of appeal. There is no merit in this position. Armstrong, in

filing his “amended” notice of appeal, was attempting to graft two new orders

onto appeal No. 02-011.     1
                                That appeal had already been docketed without a notice

of election.

      Conversely, if Armstrong had had his way, all of the orders would have

been considered in case No. 02-011 over which the BAP had jurisdiction by virtue



1
        Both the 8002(c) denial order and the claims order were final and
appealable because both orders disposed of the “particular adversary proceeding
or [] discrete controversy.” Ahammed v. Secs. Investor Protection Corp. (In re
Primeline Secs. Corp.) , 295 F.3d 1100, 1105 n.6 (10th Cir. 2002).

                                             -5-
of his failure to file a notice of election when he filed the original 02-011 notice

of appeal. As the BAP noted, “to the extent that the Appellant sought to add the

order that is the subject of the instant appeal to appeal number UT-02-011, he

consented to the jurisdiction of this Court.” Aplee. Supp. App. at 75.

       Even as a pro se litigant, Armstrong is required to comply with rules of

civil procedure.   See Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir.

1994). As such, he is on notice that those rules do not recognize anything

resembling his attempt to “amend” an already untimely notice of appeal with the

addition of two new final orders. He should, therefore, have filed his notice

of election at the same time he filed his purported “amended” notice, aware that

the BAP would do exactly what it did and construe the “amended” notice as two

new notices.

       Finally, Armstrong has filed supplemental authority in the form of two

decisions from the BAP holding that certain sanctions imposed by the bankruptcy

court for criminal contempt exceeded that court’s jurisdiction. Those decisions

have no relevance in this appeal and do not undermine the general jurisdiction of

the bankruptcy court over the Armstrong bankruptcy matters.

       Because this court finds Armstrong’s allegation of poverty to be untrue

based on the fact that he has allocated $750.00 per month for his litigation

expenses, his motion to proceed on appeal without prepayment of costs or fees


                                          -6-
is DENIED, and Armstrong is directed to make immediate payment of the balance

of his appellate filing fee. Armstrong’s motion to include the pleadings and

appendix from appeal 02-4101 is DENIED. Appellee Rushton’s motion to strike

Armstrong’s opening brief and dismiss the appeal is DENIED.

       Based on the false representations contained in Armstrong’s motion for stay

filed in this court on August 19, 2002, Appellee Steppes Apartments, Ltd., in its

opposition to that motion, has requested that sanctions be imposed on Armstrong

in the amount of their attorney’s fees and costs.    2
                                                         We may not award such a

sanction under Rule 38, however, without a separately filed motion or notice.

See Fed. R. App. P. 38, advisory committee’s note (1994 Amendment).

Nevertheless, we have concluded that Armstrong’s conduct both here and in the

bankruptcy court cannot be overlooked.      3
                                                Therefore, we now invite the

defendants, within fifteen days from the date of this order, to file a separate

motion for sanctions in which they apprise this court of the reasonable and

necessary attorney’s fees and costs incurred by them in opposing the motion for

stay. Armstrong will then have fifteen days from the filing of defendants’ motion

2
       Steppes filed its opposition to the stay and request for sanctions three days
after this court had denied the motion, thus the stay panel did not address the
sanctions issue. The clerk referred the request for sanctions to the panel assigned
to address the merits.
3
      There is no prohibition against imposing sanctions against a pro se litigant.
Haworth v. Royal (In re Haworth) , 347 F.3d 1189, 1192 (10th Cir. 2003)
(imposing sanctions under Fed. R. App. P. 38 for frivolous appeal).

                                             -7-
to show cause why he should not be sanctioned. Any sanction approved by this

court shall include the additional condition that the Clerk of Court for this circuit

shall not accept any new appeals from Armstrong in any civil matters, excluding

habeas corpus petitions, until Armstrong has certified, under oath, that he has

satisfied the sanctions. The judgment of the BAP is AFFIRMED. The mandate

shall issue forthwith.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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