09-1500-bk (L), 09-1501-bk (con)
    In re Mohamed Ismail Elmasri



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W H EN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION: “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 16th day of March, two thousand and ten.

    PRESENT:
                DEBRA ANN LIVINGSTON,
                GERARD E. LYNCH,
                                  Circuit Judges.*
    ___________________________________

    IN RE MOHAMED ISMAIL ELMASRI:

    MOHAMED ISMAIL ELMASRI, also known
    as Mohamed Elmasri,

                               Appellant,

                      v.                                              09-1500-bk (L),
                                                                      09-1501-bk (con)
    COLEEN RUPP and DONNA ENGLAND,

                               Appellees,

    KENNETH R. BARNARD and DIANA G. ADAMS,

                               Trustees.


             *
             The Honorable Rosemary S. Pooler, originally a member of this panel, did not
    participate in the consideration of this appeal. The two remaining members of the panel, who are
    in agreement, have determined the matter. See 2d Cir. Internal Operating Procedure E(b); 28
    U.S.C. § 46(d); United States v. Desimone, 

(2d Cir. 1998).
_____________________________________

FOR APPELLANT:                                 MOHAMED ISMAIL ELMASRI, pro se, Patchogue, NY

FOR APPELLEE RUPP:                             HEATH S. BERGER , Steinberg, Fineo, Berger &
                                               Fischoff, PC, Woodbury, NY

FOR APPELLEE ENGLAND:                          JEFFREY HERZBERG , Zinker & Herzberg, LLP,
                                               Smithtown, NY

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Seybert, J.) affirming two orders of the United States Bankruptcy Court for the Eastern

District of New York (Rosenthal and Feller, JJ.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED. Appellant’s motion to strike

portions of the Appellees’ briefs and appendices is DENIED as moot.

       Appellant Mohamed Ismail Elmasri, proceeding pro se, appeals from a judgment of the

United States District Court for the Eastern District of New York (Seybert, J.) entered on March 31,

2009 affirming two orders of the United States Bankruptcy Court for the Eastern District of New

York entered May 24, 2007 and April 28, 2008. We assume the parties’ familiarity with the facts,

procedural history, and issues on appeal in this dispute over $50,000 that Appellant claimed as

exempt property under the homestead exemption, and against which Appellees seek to recover for

liens securing child support judgments.

       We first consider our jurisdiction to hear this appeal and that of the district court in reviewing

the May 24, 2007 bankruptcy court order. Appellees argue that, because Appellant voluntarily

withdrew his appeal to the district court of the May 24, 2007 bankruptcy court order and later moved

to reopen that appeal without filing a new, timely, notice of appeal, the district court was without


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jurisdiction to reopen the appeal and consider its merits, and this Court is without jurisdiction to

review that order. The record reflects that Appellant moved to withdraw his appeal of the May 24,

2007 order while “preserv[ing] his right in the future to reopen this appeal or to combine the appeal

with future appeals if . . . needed.” England App. 14. The district court granted the motion,

dismissing the appeal “without prejudice” and directing the clerk to “mark this matter closed.” 

bankruptcy court, in a bench ruling on March 20, 2008, determined that the May 24, 2007

order would govern the parties’ motions as law of the case. Appellant then filed a request to “reopen

and reinstate” the appeal on April 7, 2008. 

Feller’s bench ruling was memorialized

in a published order on April 28, 2008. The district court granted the request, clarifying that “this

Bankruptcy Appeal is placed back on the docket.” 

review a district court’s determination of its subject matter jurisdiction de novo for legal

conclusions and for clear error for factual findings. In re Vogel Van & Storage, Inc., 

, 11

(2d Cir. 1995). Federal Rule of Bankruptcy Procedure 8002(a) provides that a notice of appeal “shall

be filed with the clerk [of the district court] within 14 days of the date of the entry of the judgment,

order, or decree appealed from.” We have held that this time limit is jurisdictional, even for pro se

litigants. See In re Siemon, 

(2d Cir. 2005) (per curiam). Notwithstanding this

jurisdictional bar, however, we have construed a withdrawn and reinstated appeal as a single appeal

obviating the need for a new notice of appeal in a situation, where it was clear from the

circumstances that the appellant’s decision to “withdraw” a direct appeal was not a decision to

abandon it but rather to hold the appeal in abeyance pending further proceedings in the lower court,

with the intent to reinstate the appeal after those proceedings. See United States v. Outen, 

, 631-32 (2d Cir. 2002) (construing a stipulation of a “withdrawal” of a direct appeal pending a

motion in the district court pursuant to 28 U.S.C. § 2255 as a motion to hold the direct appeal in
                                                   3
abeyance). Likewise here, the district court granted Appellant’s motion to withdraw his first appeal

“without prejudice,” and subsequently granted Appellant’s motion to “reopen and reinstate” the same

appeal. Moreover, in its review of the April 28, 2008 order, the district court necessarily had

jurisdiction to review the substance of the May 24, 2007 order, which the April order applied as law

of the case. See Johnson v. Holder, 

, 99-100 (2d Cir. 2009) (court may depart from law

of the case for “cogent or compelling reasons” such as “the need to correct a clear error or prevent

manifest injustice.” (internal quotation marks omitted)). We also have jurisdiction to review the

entirety of the district court’s decision. See Fed R. App. P. 4(a), 6(a).

       Turning to the merits, we “independently review the factual determinations and legal

conclusions of the bankruptcy court, accepting the bankruptcy court’s factual findings unless they

are clearly erroneous, and reviewing its conclusions of law de novo.” In re Jackson, 

,

176 (2d Cir. 2010) (internal quotation marks omitted). As in effect at the time Appellant filed his

bankruptcy petition, 11 U.S.C. § 522(c) provided:

               (c) Unless the case is dismissed, property exempted under this section
               is not liable during or after the case for any debt of the debtor that
               arose . . . before the commencement of the case, except - -

                       (1) a debt of a kind specified in paragraph section 523(a)(1)
                       or 523(a)(5) of this title; [or]

                       (2) a debt secured by a lien that is - -

                               (A)     (i) not avoided under subsection (f) or (g) of
                                       [§ 522] or under section 544, 545, 547, 548,
                                       549, or 724(a) of this title; and

                                       (ii) not void under section 506(d) of this title.

Section 522(f)(1)(A)(i) prohibited the avoidance of a judicial lien “that secures a debt . . . to a

spouse, former spouse, or child of the debtor for . . . support of such spouse or child, in connection

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with a separation agreement, [or] divorce decree.” 11 U.S.C. § 522(f)(1)(A)(i) (2000).

       Accordingly, because liens securing child support judgments could not be avoided under

§ 522(f), and because Appellees’ liens were not avoided or voided in this case, Appellant’s property

was not exempt from Appellees’ liens. Thus, the bankruptcy court properly ordered that such liens

must be paid before the homestead monies would be released to Appellant and, after Appellees

demonstrated to the bankruptcy court that they had properly perfected their judgment liens, the court

properly ordered the Trustee to release the funds to Appellees.

       Appellant’s argument that his settlement stipulation with Rupp and England prevents them

from asserting any entitlement to the exempt property fails. The stipulation explicitly provides that

“[n]othing contained in this stipulation shall be deemed to affect or impair the ex-Wife’s or the

Guardian’s claims and rights against third parties or the Debtor.” Rupp App. 40. In addition,

Appellant’s argument that he was denied due process by the district court’s ex parte hearing on

Appellees’ motion for a temporary restraining order preventing the Trustee from releasing property

to the Appellant is unavailing, as the order imposing the temporary restraining order is not the

subject of this appeal.

       We have carefully considered Appellant’s remaining arguments on appeal, and find them to

be without merit for substantially the same reasons as those articulated by the district court in its

thorough memorandum and order in this case. See In re Mohamed Ismail Elmasri, 07-CV-2816, 09-

CV-2709 (E.D.N.Y. Mar. 31, 2009). Accordingly, the judgment of the district court is AFFIRMED.

On February 25, 2010, Appellant moved to strike portions of the Appellees’ briefs and appendices.

That motion is hereby DENIED as moot.




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FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk




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