Blausey v. U.S. Trustee ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN C. BLAUSEY; DEANN J. 
BLAUSEY, No. 07-15955
Debtors-Appellants,
v.  D.C. No.
BK-06-10826-AJ
U.S. TRUSTEE, OPINION
Trustee-Appellee.

Appeal from the United States Bankruptcy Court
for the Northern District of California
Alan Jaroslovsky, Bankruptcy Judge, Presiding.
Argued and Submitted
December 11, 2008—San Francisco, California
Filed January 23, 2009
Before: Betty B. Fletcher, M. Margaret McKeown, and
Neil M. Gorsuch*, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Gorsuch
*The Honorable Neil M. Gorsuch, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
795
798 BLAUSEY v. U.S. TRUSTEE
COUNSEL
David N. Chandler, Jr. (argued), David N. Chandler Sr.,
David N. Chandler, P.C., Santa Rosa, California, for the
debtors-appellants.
BLAUSEY v. U.S. TRUSTEE 799
Stephanie R. Marcus (argued), Peter D. Keisler, William Kan-
ter, U.S. Department of Justice, Civil Division, Washington,
D.C., Roberta A. DeAngelis, P. Matthew Sutko, David A.
Levine, Office of the General Counsel, Executive Office for
U.S. Trustees, U.S. Department of Justice, Washington, D.C.;
James A. Shepherd, Office of the U.S. Trustee, San Francisco,
California, for trustee-appellee.
OPINION
PER CURIAM:
John and Deann Blausey appeal the bankruptcy court’s dis-
missal of their petition for Chapter 7 bankruptcy. The bank-
ruptcy court granted the U.S. Trustee’s motion to dismiss the
case pursuant to 11 U.S.C. § 707(b)(2), a provision of the
Bankruptcy Abuse Prevention and Consumer Protection Act
of 2005 (“BAPCPA”), which allows the U.S. Trustee to move
for dismissal where a statutory means test demonstrates a pre-
sumption of abuse. The bankruptcy court held that the $4,000
per month in disability insurance benefits that Mrs. Blausey
received from her private insurer should have been included
in the Blauseys’ current monthly income (“CMI”) under the
statutory means test. With the benefits included, the Blauseys’
CMI was high enough to trigger the presumption of abuse.
The Blauseys appealed directly to this court under 28
U.S.C. § 158(d)(2), a BAPCPA provision authorizing direct
appeal from the bankruptcy courts to the courts of appeals.
They argue that the bankruptcy court should have interpreted
the word “income” as used in the definition of CMI, 11
U.S.C. § 101(10A), based on the meaning of “gross income”
under the Internal Revenue Code. They reason that because
private disability insurance benefits are excluded from gross
income, Mrs. Blausey’s benefits must also be excluded from
CMI.
800 BLAUSEY v. U.S. TRUSTEE
We have jurisdiction to consider this case. We hold that
Mrs. Blausey’s private disability insurance benefits were
income that should have been included in CMI, and we affirm
the bankruptcy court.
I. BACKGROUND
A. Deann Blausey’s insurance policy and disability
In 1991, Deann Blausey purchased a private disability
insurance policy, titled “Disability Income Pro-Inc Plus,”
from John Hancock Mutual Life Insurance Company. Mrs.
Blausey’s employer paid none of the premiums for the insur-
ance policy. By its terms, the policy pays disability benefits
up to a specified “monthly income benefit amount” if the
insured becomes unable to work due to sickness or injury and
the injury caused a loss of monthly earnings of 20 percent or
more. The policy defines “monthly earnings” as wages, sala-
ries, commissions, fees, and deferred income. The amount of
benefits paid depends on the amount of income lost due to the
disability. If the insured loses at least 75 percent of her
monthly earnings, the policy pays 100 percent of the monthly
income benefit amount.
In 1996, Mrs. Blausey suffered an injury to her elbow that
made her work as a certified court reporter very painful. After
she was diagnosed with a permanent disability, she filed an
insurance claim and began to receive benefits in December
1996. She now receives $4,000 per month in disability benefit
payments under her policy.
B. Bankruptcy court proceedings
On November 15, 2006, the Blauseys filed a petition for
Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the
Northern District of California. They disclosed in their peti-
tion that Mrs. Blausey received disability benefits of $4,000
BLAUSEY v. U.S. TRUSTEE 801
per month, but they did not include these benefits in their cal-
culation of CMI.
The U.S. Trustee moved to dismiss the Blauseys’ case
under 11 U.S.C. § 707(b)(1), arguing that the case was pre-
sumptively an abuse of Chapter 7 under § 707(b)(2) or, in the
alternative, that the totality of the circumstances demonstrated
abuse under § 707(b)(3)(B).1 The U.S. Trustee urged the
bankruptcy court to find that Mrs. Blausey’s disability bene-
fits should have been included in the Blauseys’ CMI because
the benefits constitute both “income” and an “amount paid by
any entity other than the debtor . . . on a regular basis for the
household expenses of the debtor” under 11 U.S.C.
§ 101(10A)(A)-(B).2 With the $4,000 per month added to
CMI, a presumption of abuse would arise under the means
test of § 707(b).
1
Section 707(b)(2) provides a means test by which bankruptcy courts
determine whether a case is presumed to be an abuse of Chapter 7. If the
case is presumed abusive, it will be dismissed unless the debtor shows
“special circumstances” rebutting the presumption. 11 U.S.C.
§ 707(b)(2)(B)(I). If the presumption does not arise, the bankruptcy court
may still find abuse under § 707(b)(3) based on the totality of the circum-
stances.
2
Section 101(10A) provides, in relevant part, that the term “current
monthly income”:
(A) means the average monthly income from all sources that the
debtor receives (or in a joint case the debtor and the debtor’s
spouse receive) without regard to whether such income is taxable
income . . . ; and
(B) includes any amount paid by any entity other than the debtor
(or in a joint case the debtor and the debtor’s spouse), on a regu-
lar basis for the household expenses of the debtor or the debtor’s
dependents (and in a joint case the debtor’s spouse if not other-
wise a dependent), but excludes benefits received under the
Social Security Act, payments to victims of war crimes or crimes
against humanity on account of their status as victims of such
crimes, and payments to victims of international terrorism . . . or
domestic terrorism . . . on account of their status as victims of
such terrorism.
802 BLAUSEY v. U.S. TRUSTEE
The bankruptcy court held that the disability insurance pay-
ments were “income” within the meaning of CMI. The bank-
ruptcy court rejected the Blauseys’ argument that “income”
should be defined by reference to the Internal Revenue Code.
Finding that the words “all sources” and “without regard to
whether such income is taxable income” in the statute demon-
strated Congress’s intent to define income more expansively
than does the Internal Revenue Code, the bankruptcy court
adopted what it considered to be the “simplest and most
expansive” definition of income: “receipts.” The bankruptcy
court also found that the disability payments were amounts
paid by an entity other than the debtor on a regular basis for
household expenses under 11 U.S.C. § 101(10A)(B).
On May 3, 2007, the bankruptcy court entered its order dis-
missing the case.
C. Proceedings on appeal
On May 10, 2007, the Blauseys filed a notice of appeal, a
request to certify a direct appeal to the court of appeals, and
a statement of election to appeal to the district court (rather
than the bankruptcy appellate panel (“BAP”)) with the bank-
ruptcy court. On May 22, 2007, the bankruptcy court entered
its order certifying the direct appeal to our court on the
ground that the case “involves questions of law for which
there is no controlling authority and are a matter of public
importance.” On the same day as it certified the appeal, the
bankruptcy court transferred the record to our court. The
bankruptcy court erred when it made this transfer. The bank-
ruptcy court should not have sent the record to our court until
we granted the petition for permission to appeal. See Interim
Bankruptcy Rule 8001; Bankruptcy Rule 8007. Nevertheless,
the Ninth Circuit clerk docketed the appeal on June 1, 2007.
On June 27, 2007, the U.S. Trustee moved this court to
remand the appeal to the bankruptcy court with instructions to
transmit the notice of appeal and the bankruptcy court record
BLAUSEY v. U.S. TRUSTEE 803
to the district court. The U.S. Trustee argued that we lacked
jurisdiction over the appeal because the Blauseys failed to file
a petition for permission to appeal within 10 days after the
bankruptcy court’s grant of the Blauseys’ request for certifica-
tion.
On July 19, 2007, the Blauseys filed a petition for permis-
sion to appeal in this court pursuant to 28 U.S.C. § 158(d)(2).
On July 23, 2007, they filed an opposition to the U.S. Trust-
ee’s Motion to Remand. In their opposition they argued (1)
that the 10-day time limit was not jurisdictional, and (2) even
if it was jurisdictional, this court should treat the notice of
appeal filed by the bankruptcy court as a timely filed petition
for permission to appeal.
A motions panel of this court granted the Blauseys’ petition
for permission to appeal. In relevant part, the panel’s order
stated:
Appellant’s May 10, 2007 notice of appeal, which
was erroneously transmitted to this court with the
bankruptcy court’s order approving certification of
direct appeal on May 22, 2007, is construed as a
petition for permission to appeal pursuant to 28
U.S.C. § 158(d)(2). So construed, the petition for
permission to appeal pursuant to 28 U.S.C.
§ 158(d)(2) is granted.
II. DISCUSSION
A. Jurisdiction
Our jurisdiction over direct appeals from the bankruptcy
court is granted by 28 U.S.C. § 158(d)(2). We have jurisdic-
tion to determine whether we have jurisdiction over a bank-
ruptcy appeal. See, e.g., In re Canter, 299 F.3d 1150, 1152-53
(9th Cir. 2002).
804 BLAUSEY v. U.S. TRUSTEE
1. Relevant statutes and rules
[1] 28 U.S.C. § 158(d)(2) provides for direct appeals of
orders, judgments, or decrees of a bankruptcy court to the
courts of appeals. The statute grants the courts of appeals
direct appellate jurisdiction in a bankruptcy case if the bank-
ruptcy court3 certifies that: (1) the order involves a question
of law as to which there is no controlling decision of the court
of appeals for the circuit or of the Supreme Court, or if it
involves a matter of public importance; (2) the order involves
a question of law that requires resolution of conflicting deci-
sions; or (3) an immediate appeal from the order may materi-
ally advance the progress of the case or proceeding. 28 U.S.C.
§ 158(d)(2)(A). The parties must request certification no later
than 60 days after the entry of the judgment, order, or decree
being appealed. Id. § 158(d)(2)(E). If these conditions are
met, the court of appeals has discretion to authorize the direct
appeal. Id. § 158(d)(2)(A).
BAPCPA § 1233(b) specified temporary procedural rules
for these direct appeals. Pub. L. No. 109-8 § 1233(b), codified
as 28 U.S.C. § 158 note. Congress intended the temporary
rules to apply only until “such time as a rule of practice and
procedure relating to such provision and such appeals is pro-
mulgated under chapter 131 of title 28.” Id. § (1). Because the
final rules went into effect on December 1, 2008, the tempo-
rary rules at issue in this case expired by the time we heard
argument.
Under the temporary bankruptcy rules, a party must file a
notice of appeal from the order of the bankruptcy court within
10 days of the entry of the order. Bankruptcy Rule 8002. This
notice of appeal is filed in the bankruptcy court. In a separate
document filed with the bankruptcy court, the party elects
3
Section 158(d)(2) also enables a district court or BAP to certify an
appeal. For simplicity, we refer only to the bankruptcy court in this opin-
ion.
BLAUSEY v. U.S. TRUSTEE 805
whether to appeal to the district court or to the BAP. Bank-
ruptcy Rule 8001(e). The bankruptcy court is then directed to
transmit the record to the relevant district court or BAP.
Bankruptcy Rule 8007(b).
In the meantime, the parties may consider whether to
request the bankruptcy court to grant certification for a direct
appeal to the court of appeals. By statute, the parties have up
to 60 days to request certification after the bankruptcy court
enters its judgment. 28 U.S.C. § 158(d)(2)(E). Under the tem-
porary rules in effect until December 1, 2008, a party must
follow the normal appeals procedure even if it plans to request
certification. Interim Bankruptcy Rule 8001(f)(1). Thus, even
if a party requests certification within the 10-day window for
filing a notice of appeal, the party must still file the notice of
appeal in the bankruptcy court.
If the bankruptcy court grants the certification, “a petition
requesting permission to appeal . . . shall be filed with the cir-
cuit clerk not later than 10 days after the certification is
entered on the docket” of the bankruptcy court. 28 U.S.C.
§ 158 note § (4)(A). The petition for permission to appeal
“shall be taken in the manner prescribed in subdivisions
(a)(1), (b), (c), and (d) of rule 5 of the Federal Rules of Appel-
late Procedure.” Id. § (3).
Rule 5 governs appeals by permission. The petition for per-
mission to appeal must include: the facts necessary to under-
stand the question presented; the question itself; the relief
sought; the reasons why the appeal should be allowed and a
statement that it is authorized by the statute or rule; and an
attached copy of both the order, judgment, or decree that is
the subject of the application and any related opinion or mem-
orandum. Fed. R. App. P. 5(b)(1). In addition, the petition
“shall have attached” a copy of the bankruptcy court’s certifi-
cation. 28 U.S.C. § 158 note § (4)(B).
806 BLAUSEY v. U.S. TRUSTEE
If the court of appeals grants permission to appeal, the
court of appeals assumes jurisdiction over the case. 28 U.S.C.
§ 158(d)(2)(A).
2. Statutory jurisdiction
The U.S. Trustee argues that we do not have jurisdiction
over this appeal because the Blauseys filed their petition for
permission to appeal more than 10 days after the bankruptcy
court certified the appeal. We disagree.
[2] Preliminarily, we note that the bankruptcy court prop-
erly certified this appeal. The bankruptcy court granted the
Blauseys’ request for certification because the case “involves
questions of law for which there is no controlling authority
and are a matter of public importance.” Because no Ninth Cir-
cuit or Supreme Court case addresses whether the word “in-
come” in “current monthly income” should be interpreted to
mean “gross income” as defined in the Internal Revenue
Code, the condition for certification in 28 U.S.C.
§ 158(d)(2)(A)(I) is met.
[3] The parties do not dispute that the Blauseys’ petition for
permission to appeal was untimely filed. The temporary pro-
cedural rules required that a petition for permission to appeal
be filed with the circuit clerk no later than 10 days after the
certification is entered on the docket of the bankruptcy court.
28 U.S.C. § 158 note § (4)(A). Because the Blauseys filed
their notice of appeal with the bankruptcy court on May 10,
2007, and the bankruptcy court issued its certification of
direct appeal on May 22, 2007, the Blauseys were required to
file a petition for permission to appeal no later than June 6,
2007. See Fed. R. App. P. 26(a)(2) (exclude “intermediate
Saturdays, Sundays, and legal holidays when the period is less
than 11 days”). Instead, they filed their petition on July 19,
2007, nearly two months after the certification was entered on
the bankruptcy court docket.
BLAUSEY v. U.S. TRUSTEE 807
[4] We conclude that although there was not technical com-
pliance with the statute, the transmission of the certification
and the record was sufficient in this case to satisfy any statu-
tory jurisdictional requirement. We must, however, also con-
cern ourselves with whether there was adequate compliance
with Fed. R. App. P. 5.
Under Fed. R. App. P. 2, we may suspend any provision of
the Rules of Appellate Procedure and order proceedings as we
direct, except as otherwise provided under Rule 26(b). Fed. R.
App. P. 26(b)(1) provides that we may permit an act to be
done after the time prescribed in the rules expires, but we may
not extend the time to file a notice of appeal or a petition for
permission to appeal. To avoid this result, the motions panel
exercised its discretion to forgive procedural errors under
Rule 2 and construed the notice of appeal—which the
Blauseys filed in the bankruptcy court and which the bank-
ruptcy court then transferred to this court—as a valid petition
for permission to appeal. Because the notice of appeal and the
district court’s certification of the appeal were filed in this
court on June 1, 2007, the effective result of the panel’s order
was to treat the case as if the petition for permission to appeal
had been filed within the time limits set by 28 U.S.C. § 158note § (4)(A).
[5] The U.S. Trustee argues that the notice of appeal was
not sufficiently complete to be construed as a petition for per-
mission. We agree with the motions panel, however, that
because the notice of appeal and the bankruptcy court record
were filed in our court within the 10-day statutory deadline,
we may exercise our discretion under Rule 2 to suspend the
requirements of Rule 5 for good cause. Here, the bankruptcy
court’s mistaken transfer of the record to our court and our
court’s docketing of the appeal were sufficient to create the
appearance that the appeal was appropriately received by this
court. We decline the U.S. Trustee’s suggestion that we pun-
ish the Blauseys for the docketing activity by this court and
the bankruptcy court, both faced with implementing transition
808 BLAUSEY v. U.S. TRUSTEE
rules. We conclude that in these limited circumstances, where
there was otherwise effective compliance and the courts them-
selves were responsible in part for the posture that created the
procedural ambiguity, there is good cause to excuse the
requirements of Rule 5. However, bankruptcy petitioners and
bankruptcy courts should now be on notice of this potential
pitfall. Consequently, future failure to timely file a petition to
appeal in these circumstances is unlikely to be given the bene-
fit of the good cause exception. Finally, because we construe
the petition as timely filed, we are not improperly extending
the time for filing a petition for permission to appeal. Rather,
we are “waiving the requirements [of Rule 5] that the timely
petition . . . be filed in this court, that it explain the details of
the appeal, and that plaintiffs file the proper number of cop-
ies.” Amalgamated Transit Union Local 1309 v. Laidlaw
Transit Servs., Inc., 435 F.3d 1140, 1147 (9th Cir. 2006)
(exercising discretion under Rule 2 to construe a timely notice
of appeal and an untimely petition for permission to appeal as
together constituting a timely petition for permission to appeal
under the Class Action Fairness Act, 28 U.S.C. § 1453(c)(1)).4
3. Discretion to exercise jurisdiction
Once it is established that we have jurisdiction to hear a
direct appeal from a bankruptcy court, we must decide
whether to exercise our discretion to hear the appeal. 28
U.S.C. § 158(d)(2)(A).
We agree with the motions panel’s decision to accept this
appeal. First, the issue presented by this appeal is important
because the calculation of CMI is a part of every petition for
Chapter 7 bankruptcy. See Schedule I (“Current Income of
4
At oral argument, the U.S. Trustee argued that because the Blauseys
themselves did not file the notice of appeal in our court, the statutory
requirements for jurisdiction were not met. Section 4 of 28 U.S.C. § 158note, however, requires only that the petition “shall be filed.” It does not
require that the petition be filed by one of the parties.
BLAUSEY v. U.S. TRUSTEE 809
Individual Debtor(s)”). Second, this appeal presents a ques-
tion of law, making it unlikely that further proceedings in the
district court will cast more light on the issue. See Weber v.
U.S. Trustee, 484 F.3d 154, 158 (2d Cir. 2007). Third, the
bankruptcy courts lack a clear precedent for interpreting CMI.
Although several bankruptcy courts and bankruptcy appellate
panels have interpreted CMI and found that it is not defined
by reference to the Internal Revenue Code,5 there are no cir-
cuit court decisions interpreting this provision. All of these
factors lead us to conclude that judicial efficiency will be best
served if we decide the issue now rather than remand it for
consideration in the district court, from which an appeal could
then be taken to our court.
B. “Current Monthly Income”
We review the bankruptcy court’s interpretation of the
Bankruptcy Code de novo and its factual findings for clear
error. In re Salazar, 430 F.3d 992, 994 (9th Cir. 2005) (citing
In re Bunyan, 354 F.3d 1149, 1150 (9th Cir. 2004)).
[6] CMI is defined as “the average monthly income from
all sources that the debtor receives . . . without regard to
whether such income is taxable income”, including “any
amount paid by any entity other than the debtor . . . on a regu-
lar basis for the household expenses of the debtor or the debt-
5
See, e.g., In re Wiegand, 386 B.R. 238, 242 (B.A.P. 9th Cir. 2008)
(holding that the phrase “without regard to whether such income is taxable
income” in 11 U.S.C. § 101(10A)(A) reflects a “clear congressional intent
that Tax Code concepts for determining taxable income are inapplicable
to a determination of current monthly income”); In re Zahn, 391 B.R. 840,
845-46 (B.A.P. 8th Cir. 2008) (holding that distributions from IRAs
should be excluded from income because the money deposited into an
IRA is received for use prior to the distribution from the IRA, and finding
it “irrelevant to our decision that funds in an IRA are excluded from fed-
eral income tax”); In re Royal, No. 07 B 15826, 2008 WL 4900527, at *5
(Bankr. N.D. Ill. Nov. 7, 2008) (CMI is not based on gross income and
includes earned income tax credits).
810 BLAUSEY v. U.S. TRUSTEE
or’s dependents.” 11 U.S.C. § 101(10A)(A), (B). The statute
excludes three types of payments from CMI: “benefits
received under the Social Security Act, payments to victims
of war crimes or crimes against humanity on account of their
status as victims of such crimes, and payments to victims of
international terrorism . . . or domestic terrorism . . . on
account of their status as victims of such terrorism.” 11
U.S.C. § 101(10A)(B). The Bankruptcy Code does not define
“income.” See 11 U.S.C. § 101.
[7] CMI is a component of a statutory means test that bank-
ruptcy courts use to determine whether a debtor’s bankruptcy
petition is to be presumed an abuse of Chapter 7. See 11
U.S.C. § 707(b)(2). The means test is applied only if the debt-
or’s CMI is above the safe harbor amount set forth in 11
U.S.C. § 707(b)(7). If the debtor’s CMI minus certain
expenses specified in the Internal Revenue Service’s collec-
tion standards multiplied by 60 is either (1) greater than or
equal to $6,575 or 25 percent of the debtor’s nonpriority
secured debts, whichever is greater, or (2) greater than or
equal to $10,950, then the case is presumed to be an abuse
and the bankruptcy court may either dismiss it under § 707(b)
or, with the debtor’s consent, convert it to Chapter 13. See id.
§§ 707(b)(2)(A), (b)(1).
The Blauseys’ chief argument is that “income” in the defi-
nition of CMI should be interpreted as consistent with “gross
income” as defined in the Internal Revenue Code. “Gross
income means all income from whatever source derived . . . .”
26 U.S.C. § 61(a). “Gross income,” however, expressly does
not include “amounts received through accident or health
insurance . . . for personal injuries or sickness (other than
amounts received by an employee, to the extent that such
amounts (A) are attributable to contributions by the employer
which were not includible in the gross income of the
employee, or (B) are paid by the employer.)” 26 U.S.C.
§ 104(a)(3). The Blauseys argue that Mrs. Blausey’s private
disability insurance benefits, which were not attributable to
BLAUSEY v. U.S. TRUSTEE 811
contributions by her employer, are not “gross income” under
the Internal Revenue Code. The Blauseys reason that if the
benefits are not included in gross income under the Internal
Revenue Code, they likewise should not be included in
income when calculating CMI.
[8] The plain language of the Bankruptcy Code, however,
does not support this interpretation. See Lamie v. U.S. Trustee,
540 U.S. 526, 534 (2004) (“It is well established that when
the statute’s language is plain, the sole function of the courts
—at least where the disposition required by the text is not
absurd—is to enforce it according to its terms.” (internal quo-
tation marks omitted)). The phrase “without regard to whether
such income is taxable income” in 11 U.S.C. § 101(10A)(A)
reflects Congress’ judgment that the Internal Revenue Code’s
method of determining taxable income does not apply to the
Bankruptcy Code’s calculation of CMI. Moreover, where
Congress wishes to define a term in the Bankruptcy code by
reference to the Internal Revenue Code, it clearly knows how
to do so. For example, Congress imported the Internal Reve-
nue Service’s Local and National Standards for expenses into
the means test calculation. See 11 U.S.C.
§ 707(b)(2)(A)(ii)(I).
[9] In addition, the statute specifically excludes certain pay-
ments, such as Social Security payments and payments to vic-
tims of war crimes and terrorism, from CMI. 11 U.S.C.
§ 101(10A)(B). The general rule of statutory construction is
that the enumeration of specific exclusions from the operation
of a statute is an indication that the statute should apply to all
cases not specifically excluded. See 2A Sutherland Statutory
Construction § 47:23 (discussing the rule of expressio unius
est exclusio alterius). Here, the statute makes several specific
exclusions from CMI but does not specifically exclude private
disability insurance benefits. This indicates that Congress
meant for the benefits to be included in CMI.
The Blauseys argue that even if CMI is not defined by ref-
erence to the Internal Revenue Code, standard definitions of
812 BLAUSEY v. U.S. TRUSTEE
“income” support excluding Mrs. Blausey’s benefits. Web-
ster’s Third New International Dictionary, for example,
defines “income” as:
a gain or recurrent benefit that is usu[ally] measured
in money and for a given period of time, derives
from capital, labor, or a combination of both,
includes gains from transactions in capital assets, but
excludes unrealized advances in value . . . the value
of goods and services received by an individual in a
given period of time.
Webster’s Third New International Dictionary 1143 (1993).
Black’s Law Dictionary, meanwhile, defines “income” as:
the money or other form of payment that one
receives, usu[ally] periodically, from employment,
investments, royalties, gifts, and the like.
Black’s Law Dictionary, 8th ed. 778 (2004).
[10] The Blauseys ask us to find that the disability insur-
ance benefit payments are not “income” under these defini-
tions because the benefits are not derived from labor but,
instead, serve as compensation for the loss of her ability to
work as a court reporter. This argument is unavailing. By the
terms of her insurance policy, Mrs. Blausey’s disability insur-
ance benefits were triggered when her lost earnings exceeded
twenty percent of her original monthly earnings. The monthly
benefits payment under the policy is based on the amount of
income lost. If Mrs. Blausey were to find a job that paid as
much as her court reporter job would pay, she would no lon-
ger receive insurance benefits because she would no longer
have lost income. It is thus clear that the purpose of the dis-
ability insurance plan is to replace the income that Mrs.
Blausey lost due to her disability.
[11] Finally, the history of BAPCPA indicates that exclud-
ing Mrs. Blausey’s disability insurance benefits from CMI
BLAUSEY v. U.S. TRUSTEE 813
would contravene the purpose of the means test. According to
the House Report on BAPCPA, “[t]he heart of the bill’s con-
sumer bankruptcy reforms consists of the implementation of
an income/expense screening mechanism (‘needs-based bank-
ruptcy relief’ or ‘means testing’), which is intended to ensure
that debtors repay creditors the maximum they can afford.”
H.R. Rep. 109-31(I) at 1, reprinted in 2005 U.S.C.C.A.N. 88,
89 (April 8, 2005). The purpose of the means test is to “help
the courts determine who can and who cannot repay their
debts and, perhaps most importantly, how much they can
afford to pay.” 151 Cong. Rec. S1726-01, S1786 (daily ed.
Feb. 28, 2005) (statement of Sen. Hatch). Excluding the
$4,000 per month in replacement income from CMI would
result in a figure that does not accurately reflect the Blauseys’
ability to repay their debts. Congress’s determination that a
certain type of income should not be taxed does not reflect a
determination that the income is not available to repay debts.
[12] For these reasons, we hold that Mrs. Blausey’s private
disability insurance benefits are income under the Bankruptcy
Code and should have been included in the Blauseys’ calcula-
tion of CMI.6
CONCLUSION
We have jurisdiction over this appeal, and we find that the
Blauseys were required to include Mrs. Blausey’s private dis-
ability insurance benefits in their calculation of “current
monthly income” under 11 U.S.C. § 101(10A). We therefore
AFFIRM the bankruptcy court’s dismissal of the Blauseys’
bankruptcy petition.
6
Because we hold that the disability insurance benefits Mrs. Blausey
receives are income under 11 U.S.C. § 101(10A)(A), we do not reach the
question of whether they are also income under § 101(10A)(B).
814 BLAUSEY v. U.S. TRUSTEE
GORSUCH, J., Circuit Judge, dissenting:
I admire and agree with the court’s thoughtful treatment of
the merits of this case. Before reaching the merits, however,
I would dismiss this appeal for lack of jurisdiction. The
Blauseys’s argument that we may entertain their appeal, even
if ultimately to reject it, runs afoul of the Supreme Court’s
directions about the respect due statutory limits on our juris-
diction and exacerbates a circuit split.
The Blauseys have not complied with unambiguous statu-
tory preconditions to appeal. For an appeal, like this one, aris-
ing under 28 U.S.C. § 158(d)(2)(A), Congress has directed
that “a petition requesting permission to appeal . . . shall be
filed with the circuit clerk not later than 10 days after the cer-
tification is entered on the docket sheet of the bankruptcy
court,” and further directed that the petition for appeal “shall
be taken in the manner prescribed in subdivisions (a)(1), (b),
(c), and (d) of rule 5 of the Federal Rules of Appellate Proce-
dure.” 28 U.S.C. § 158 Note at § 4, 3 (emphasis added).1
Before us, the Blauseys concede that they did not file a peti-
tion requesting permission to appeal with the circuit clerk
within 10 days, much less one conforming to the requirements
of the specified subdivisions of Rule 5. That concession
should end this appeal.
The Supreme Court’s discussion in Bowles v. Russell, 551
U.S. 205 (2007), requires as much. There, the Court clarified
that, because Congress is the branch of government constitu-
tionally vested with the authority to regulate the jurisdiction
of the federal courts, courts are powerless to enlarge statutory
1
The majority agrees, and neither party contests, that the temporary pro-
cedural requirements set forth in Pub. L. No. 109-8 § 1233(b), codified as
28 U.S.C. § 158 Note, carry the full force of statute. See 1 U.S.C. § 112(statutes at large “shall be legal evidence of laws . . . in all the courts of
the United States”); United States Nat’l Bank of Oregon v. Indep. Ins.
Agents of Am. Inc., 508 U.S. 439, 448 (1993).
BLAUSEY v. U.S. TRUSTEE 815
time limitations. Id. at 2365. When Congress “forbids federal
courts from adjudicating an otherwise legitimate ‘class of
cases’ after a certain period has elapsed from final judgment,”
its decision is “no less ‘jurisdictional’ ” than when it confers
or denies subject matter jurisdiction. Id. at 2366. The resulting
jurisdictional hurdle is one that a court may not lower for the
litigants — no matter how deserving the litigants and no mat-
ter how equitable their reason for seeking a delay may be. Id.
Even aside from this jurisdictional imperative, it is worth
pausing to note that respecting Congress’s mandates about the
nature and content of a Section 158 petition is not simply a
matter of following “form for its esthetics” — instead, Con-
gress’s mandates serve a substantive function, ensuring a peti-
tion whose contents are “designed to answer the question of
whether an . . . appeal will materially advance the . . . litiga-
tion.” Aucoin v. Matador Services, Inc., 749 F.2d 1180, 1181
(5th Cir. 1985) (Higginbotham, J.). A bare notice of appeal,
like the one filed by the Blauseys, surely “expresses an appel-
lant’s wish for such a ruling but it misfires in function
because,” unlike a statutorily compliant petition, “it does not
timely inform the appellate court in a manner which allows it
promptly to respond.” Id.2
The Blauseys’s invocation of FRAP 2 does not solve the
problem for two independently compelling reasons. First, by
its terms, Rule 2 states that the “court of appeals may — to
expedite its decision or for other good cause — suspend any
provision of these rules in a particular case.” Fed.R.App.P. 2
(emphasis added). But in the statute before us Congress spe-
cifically incorporated select subdivisions of Rule 5 as precon-
ditions for a valid petition, 28 U.S.C. § 158 Note at § 3, and
2
See also Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir. 1981)
(stating, in the context of 28 U.S.C. § 1292 interlocutory appeals, that
Rule 5’s “ten-day limitation period functions largely to assure that the dis-
trict court will exercise its discretion to certify an appeal . . . contempora-
neously with this court’s discretionary grant of permission to proceed with
the interlocutory appeal”) (citing 9 Moore’s Federal Practice P 205.03(2),
at 5-9 (2d ed. 1980)).
816 BLAUSEY v. U.S. TRUSTEE
whatever authority Rule 2 provides for overcoming rules, it
does not imbue us with authority to suspend provisions of a
statute. Surely we would not be willing to suspend the
requirements of Rule 5 if Congress had copied them, word-for
word, into the statute. The Blauseys offer us no apparent rea-
son to treat our statute, in which Congress expressly incorpo-
rated various of Rule 5’s subdivisions by reference, any
differently.
Second, even if Rule 2 did imbue us with authority to
revise Congress’s statute, it still would not empower us to
excuse the Blauseys’s procedural default. Rule 2 authorizes
departures from the Federal Rules of Appellate Procedure
when “good cause” is shown, but Rule 26(b)(1) trumps Rule
2 when it comes to extensions of time, providing that we
“may not extend the time to file . . . a petition for permission
to appeal.” Fed.R.App.P. 26(b)(1); see also Fed.R.App.P. 2
(“[A] court of appeals may . . . suspend any provision of these
rules . . . except as otherwise provided in Rule 26(b).”). And
an extension of time to file is functionally what the Blauseys
seek from us. The Blauseys ask us to treat their compliant
petition, filed over three months after the statutory deadline,
as if it had been filed within the statutory period, and do so
on the ground that they filed a concededly non-compliant
notice of appeal within that period. Every other circuit to have
faced such a request has rejected it, however, recognizing that
granting such a request would be the functional equivalent of
affording an impermissible extension of time. As the Eleventh
Circuit has explained in materially identical circumstances,
granting such a request “would be too much of a stretch and
would undermine both the purpose of Rule 5 and of the prohi-
bition of Rule 26. A notice of appeal contains none of the .
. . components required by Rule 5(b)(1) and does not permit
an answer from the opposing party as contemplated in Rule
5(b)(2).” Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475
F.3d 1228, 1231 (11th Cir. 2007).3
3
See also Crystal Clear Comm. v. Southwestern Bell, 415 F.3d 1171,
1175 (10th Cir. 2005); Inmates of the Allegheny County Jail v. Wecht, 873
BLAUSEY v. U.S. TRUSTEE 817
Neither is this result simply a matter of common sense and
widespread circuit law. In Torres v. Oakland Scavenger Co.,
487 U.S. 312 (1988), the Supreme Court held that Rule 2 did
not permit the courts to correct a clerical error in a party’s
notice of appeal by adding an accidentally forgotten party
after the time for appeal elapsed. Using Rule 2 in this way, the
Court held, would “vitiate[ ]” mandatory time limits:
“[p]ermitting courts to exercise jurisdiction over unnamed
parties after the time for filing a notice of appeal has passed
is equivalent to permitting courts to extend the time for filing
a notice of appeal. Because the Rules do not grant the courts
the latter power, we hold that the Rules likewise withhold the
former.” Id. at 315. Exactly the same might be said here:
employing Rule 2 in the manner urged by the Blauseys would
vitiate the mandatory nature of the statute’s time limits and do
so in defiance of Rule 26.
Amalgamated Transit Union Local 1309, AFL-CIO v.
Laidlaw Transit Serv., Inc., 435 F.3d 1140 (9th Cir. 2006),
does not alter this result. In Amalgamated, this court excused
compliance with Rule 5 only because the court had “con-
strued the statute [the Class Action Fairness Act (“CAFA”)]
to require a procedural framework that is not readily apparent
from the statutory text or its legislative history, and ha[d]
changed the statutory deadline for seeking to appeal to the
opposite of what the plain language of the statute says.” Id.
at 1146. In these most unusual circumstances, the court
excused compliance with Rule 5 “[t]o avoid the serious
unfairness and potential due process violation that applying
our holdings to this case might raise.” Id. at 1146-47. None
of the unique considerations the Amalgamated court faced
F.2d 55, 57 (3rd Cir. 1989); Aucoin, 749 F.2d at 1181; In re La Providen-
cia Dev. Corp., 515 F.2d 94, 95-96 (1st Cir. 1975); Hanson v. Hunt Oil
Co., 488 F.2d 70, 71-72 (8th Cir. 1973); 16A Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3951
(4th ed. 2008) (noting this widespread agreement among circuits).
818 BLAUSEY v. U.S. TRUSTEE
pertains to routine cases like this one where the appellant files
a notice of appeal rather than the required Rule 5 petition. For
starters, unlike in the CAFA context, Congress could not have
been clearer in 28 U.S.C. § 158 Note that Rule 5 applies to
any Section 158 petition for permission to appeal. Next, the
time-limitation set forth in the statute has not been modified
by the court. Finally, the Blauseys provide us with no reason
whatsoever to explain their failure to comply with Rule 5 —
let alone anything approaching good cause. As they would
have it, any timely filed notice of appeal will substitute for a
Rule 5-compliant petition. See also 16A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3951 (4th ed. 2008) (explaining that “[t]he
approach of treating the notice of appeal as a petition for per-
mission to appeal [in Amalgamated] . . . is one that has been
rejected by other courts in other contexts and that litigants
should not count upon in future cases”).
The court seeks to narrow the scope of its ruling by stress-
ing its view that the Blauseys have met Rule 2’s “good cause”
requirement because “our court[ ] docket[ed] . . . the appeal.”
Maj. Op. at 807. But the Blauseys themselves make no argu-
ment along these lines — and for good reason. The decision
of the clerk’s office or a motions panel to accept this appeal
has no bearing on the cause of the Blauseys’s failure to com-
ply with Section 158. Neither, of course, do the decisions of
the clerk’s office or a motions panel excuse us from consider-
ing independently our authority to hear a case, especially
where (as here) that authority has been challenged. Indeed, it
is long settled that a decision of a motions panel does not con-
trol a subsequent merits panel or absolve us of the need to
assess our authority to proceed. See Morrison-Knudsen Co.,
Inc. v. CHG Int’l, Inc., 811 F.2d 1209, 1214 (9th Cir.1987)
(“A motions panel of this court previously ruled that we had
jurisdiction here . . . . We cannot agree, however, and are
bound to note a defect in appellate jurisdiction whenever one
appears.”), cert. dismissed sub nom. Federal Sav. & Loan Ins.
Corp. v. Stevenson Assoc., 488 U.S. 935 (1988). The court’s
BLAUSEY v. U.S. TRUSTEE 819
reluctance to shift the course of this appeal is understandable,
and yet under its rule an appellant who files a notice of appeal
in the statutory period, rather than a Rule 5-compliant peti-
tion, is not procedurally barred from a hearing. Bowles does
not authorize this result. Nor does Rule 2 allow it. The prob-
lem the Supreme Court and our sister circuits have foreseen
has materialized here: a mandatory limit has been effectively
“vitiated.”
I respectfully dissent.