In re: Robert Scholz & Carolyn Scholz

Filing

FILED OPINION (CONSUELO M. CALLAHAN, PAUL J. WATFORD and JAMES K. SINGLETON) REVERSED AND REMANDED. Judge: PJW Authoring, FILED AND ENTERED JUDGMENT. [8402426]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

In re: ROBERT LYNN SCHOLZ;
CAROLYN GAIL SCHOLZ,
Debtors,
MICHAEL HUGH MEYER, Chapter 13
Trustee,
Appellant,

No. 11-60023
BAP No.
10-1153

OPINION

v.
UST - UNITED STATES TRUSTEE ,
SACRAMENTO ; ROBERT LYNN
SCHOLZ; CAROLYN GAIL SCHOLZ,
Appellees.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Markell, Zive, and Jury, Bankruptcy Judges, Presiding
Argued and Submitted
August 10, 2012—San Francisco, California
Filed November 15, 2012

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IN RE: SCHOLZ
Before: Consuelo M. Callahan and Paul J. Watford,
Circuit Judges, and James K. Singleton,
Senior District Judge.*
Opinion by Judge Watford

SUMMARY**

Reversing a decision of the Bankruptcy Appellate Panel,
the panel held that debtors could not exclude a Railroad
Retirement Act annuity when calculating their “projected
disposable income,” which determined the amount they were
required to repay creditors to qualify for chapter 13 relief.
The panel held that even though the Bankruptcy Appellate
Panel’s decision remanded the case to the bankruptcy court
and therefore was not final as a technical matter, the decision
was reviewable because judicial efficiency weighed in favor
of the assertion of appellate jurisdiction, and the panel’s
resolution of the issue would not interfere with the bankruptcy
court’s fact-finding role.
Applying a trust law understanding of the statute pursuant
to Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), the panel
held that the Railroad Retirement Act’s anti-anticipation

*

The Honorable James K. Singleton, Senior United States District Judge
for the District of Alaska, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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clause, which provides that the payment of an annuity shall
not be “anticipated,” refers to premature receipt of payment,
and thus does not preclude the inclusion of Railroad
Retirement Act annuity payments in chapter 13 debtors’
projected disposable income.

COUNSEL
Brent D. Meyer, Meyer Law Group, LLP, San Francisco,
California, for the trustee-appellant.
Gary Huss, Law Offices of Gary Huss, Fresno, California, for
the debtors-appellees.
Henry E. Hildebrand, III, Standing Chapter 13 Trustee for the
Middle District of Tennessee, Nashville, Tennessee, for
amicus curiae National Association of Chapter 13 Trustees.

OPINION
WATFORD, Circuit Judge:
Robert and Carolyn Scholz have filed for bankruptcy
protection under Chapter 13 of the Bankruptcy Code. The
question before us is whether the Scholzes may exclude an
annuity Mr. Scholz receives under the Railroad Retirement
Act of 1974 (RRA) when calculating their “projected
disposable income,” which determines the amount they must
repay creditors to qualify for Chapter 13 relief. The Scholzes
contend the annuity must be excluded because the RRA
provides that payment of such annuities shall not be

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“anticipated.” In the Scholzes’ view, calculating their
projected disposable income based on the expectation that
Mr. Scholz will continue to receive the annuity “anticipates”
its payment and is therefore barred by the RRA. In our view,
that reading of the statute is foreclosed by the Supreme
Court’s construction of the term “anticipated” in Hisquierdo
v. Hisquierdo, 439 U.S. 572 (1979).
I
The relevant facts may be briefly summarized. Mr.
Scholz, a retired railroad employee, receives annuity income
under the RRA of several thousand dollars per month. When
the Scholzes filed their Chapter 13 petition, they were
required to calculate their “current monthly income,” which
is defined as “the average monthly income from all sources
that the debtor receives” during the six-month period before
the bankruptcy filing, subject to several exclusions.
11 U.S.C. § 101(10A). The Scholzes excluded Mr. Scholz’s
RRA annuity when calculating their current monthly income.
The bankruptcy court agreed, over an objection by the trustee,
that this exclusion was proper. See In re Scholz, 427 B.R.
864, 870-72 (Bankr. E.D. Cal. 2010).
The exclusion of Mr. Scholz’s RRA annuity from “current
monthly income” was significant because that figure is used
as the baseline for calculating a debtor’s “disposable income”
– the amount the debtor has left after paying specified
expenses each month. See 11 U.S.C. § 1325(b)(2). The
amount of a debtor’s “disposable income,” in turn, will often
have an important bearing on the terms of the repayment plan
that the bankruptcy court must approve. For if the debtor’s
proposed plan does not pay unsecured creditors in full, and

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either the trustee or any unsecured creditor objects, the
bankruptcy court may not approve the plan unless the debtor
agrees to pay all of the debtor’s “projected disposable
income” to unsecured creditors over the duration of the plan.
Id. § 1325(b)(1).
After the bankruptcy court confirmed the Scholzes’
proposed plan, the trustee appealed. The Bankruptcy
Appellate Panel of the Ninth Circuit (BAP) held that the
bankruptcy court had erred by excluding Mr. Scholz’s RRA
annuity when calculating the Scholzes’ current monthly
income. Meyer v. Scholz (In re Scholz), 447 B.R. 887, 893-94
(B.A.P. 9th Cir. 2011). The BAP reasoned that, had Congress
intended to exclude RRA annuity income from the calculation
of current monthly income, it could have provided an express
exclusion for such income, as it has for other sources of
retirement income, such as Social Security benefits.
Congress’s failure to do so, the BAP reasoned, precludes
courts from creating new, nonstatutory exclusions. Id. at 89192. Both the trustee and the Scholzes now agree that the
BAP’s ruling on this point is correct.
Ordinarily, including a source of income in the calculation
of current monthly income means that source will be included
in the calculation of projected disposable income as well. But
the BAP thought RRA annuity income had to be treated
differently, based on what we will call the RRA’s “antianticipation clause.” That clause, italicized below, provides
as follows:
[N]otwithstanding any other law of the United
States, or of any State, territory, or the District
of Columbia, no annuity or supplemental

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annuity shall be assignable or be subject to
any tax or to garnishment, attachment, or other
legal process under any circumstances
whatsoever, nor shall the payment thereof be
anticipated.

45 U.S.C. § 231m(a) (emphasis added). The BAP held that
including RRA annuity income in the calculation of a debtor’s
projected disposable income would “anticipate” payment of
the annuity and is therefore barred by the RRA’s antianticipation clause. Scholz, 447 B.R. at 895-96.
II
Before addressing the merits of this holding, we must first
decide whether the BAP’s ruling is reviewable. We have
jurisdiction to review “all final decisions, judgments, orders,
and decrees” issued by the BAP. 28 U.S.C. § 158(d)(1). The
BAP’s decision here is not final as a technical matter, because
it remands the case to the bankruptcy court for further factual
findings – namely, recalculation of (1) the Scholzes’ current
monthly income with Mr. Scholz’s RRA annuity included,
and (2) their projected disposable income with the annuity
excluded. See DeMarah v. United States (In re DeMarah),
62 F.3d 1248, 1250 (9th Cir. 1995). But our case law permits
a “flexible approach to jurisdiction in the context of
bankruptcy appeals.” Congrejo Invs., LLC v. Mann (In re
Bender), 586 F.3d 1159, 1163 (9th Cir. 2009). In determining
whether to assert jurisdiction, we consider: “(1) the need to
avoid piecemeal litigation; (2) judicial efficiency; (3) the
systemic interest in preserving the bankruptcy court’s role as
the finder of fact; and (4) whether delaying review would
cause either party irreparable harm.” Id. at 1164 (internal

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quotation marks omitted). After considering these factors, we
are persuaded that the exercise of appellate jurisdiction is
proper here.
The second and third factors identified in Bender weigh
in favor of exercising jurisdiction. Because this appeal
concerns a purely legal issue that does not turn in any way on
the factual record, our resolution of the issue will not interfere
with the bankruptcy court’s fact-finding role. Furthermore,
resolution at this juncture will increase judicial efficiency by
ensuring that, upon remand, the bankruptcy court will need to
calculate the Scholzes’ projected disposable income only
once. We have found jurisdiction proper in similar
circumstances when resolution of a central legal issue would
“materially aid the bankruptcy court in reaching its
disposition on remand.” Dawson v. Washington Mutual
Bank, F.A. (In re Dawson), 390 F.3d 1139, 1145-46 (9th Cir.
2004) (asserting jurisdiction over an appeal concerning the
availability of a particular form of damages to ensure that the
bankruptcy court would perform the correct calculation on
remand).
With respect to the remaining two factors, neither party
has raised the prospect of irreparable harm, and there is no
particular risk of piecemeal litigation because the bankruptcy
court’s task on remand would have been primarily a
computational one. We see no indication that the bankruptcy
court’s recalculation of the Scholzes’ current monthly income
and projected disposable income would be likely to generate
new issues for appeal. See Saxman v. Educ. Credit Mgmt.
Corp. (In re Saxman), 325 F.3d 1168, 1171-72 (9th Cir. 2003)
(asserting jurisdiction over an appeal from an order
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reasonably pay per month without suffering undue hardship).
Accordingly, there are substantial benefits to exercising
jurisdiction now and no apparent countervailing reasons for
declining to do so.
III
We can now turn back to the statute at issue. The RRA
states, as noted before, that payment of RRA annuities may
not be “anticipated.” 45 U.S.C. § 231m(a). The term
“anticipated” is not defined, and no legislative history sheds
light on its meaning. The Scholzes urge us to construe the
term in this sense: We “anticipate” something by expecting
a future event to occur and acting in accordance with that
expectation. (For example, we might “anticipate” a pay raise
at the end of the year by moving into a more expensive
apartment.) If that definition were applied here, a court would
impermissibly “anticipate” RRA annuity income by expecting
that income to be paid in the future and calculating projected
disposable income in accordance with that expectation.
In our view, the Scholzes’ construction of the statute is
foreclosed by the Supreme Court’s decision in Hisquierdo v.
Hisquierdo, 439 U.S. 572 (1979). There, the Court held that
Congress used “anticipated” not in the sense the Scholzes
urge, but instead in a more specialized sense borrowed from
the law of trusts. Under trust law, the Court explained, “a
prohibition against anticipation is commonly understood to
mean that ‘the interest of a sole beneficiary shall not be paid
to him before a certain date.’” Id. at 588 (quoting ERWIN
NATHANIEL GRISWOLD , SPENDTHRIFT TRUSTS § 512 (2d ed.
1947)); see also RESTATEMENT (SECOND ) OF TRUSTS § 168
(1959) (anticipation of income means receiving it “before the

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time when by the terms of the trust [the beneficiary] is
entitled to the enjoyment of such income”); BLACK’S LAW
DICTIONARY 108 (9th ed. 2009) (defining “anticipation” as
“[t]he distribution or receipt of trust income before it is due”).
The Supreme Court applied this trust law understanding
of “anticipated” in Hisquierdo, and made clear that it refers to
premature receipt of payment. The Hisquierdos were
involved in a divorce proceeding in which Mrs. Hisquierdo
sought to claim a community property interest in the RRA
benefits her husband would begin receiving after he retired.
Hisquierdo, 439 U.S. at 578-79. She argued that her
community property interest could be satisfied by an
offsetting award of presently available community property.
Id. at 588. The Court held that the RRA’s anti-anticipation
clause barred such an award. Under the trust law definition
of “anticipated,” the offsetting award Mrs. Hisquierdo sought
“would improperly anticipate payment by allowing her to
receive her interest before the date Congress has set for any
interest to accrue.” Id. at 589 (emphasis added).
Taking RRA annuity income into account when
calculating a debtor’s projected disposable income does not
“anticipate” that income in the trust law sense of the term.
Doing so merely allows the bankruptcy court to calculate the
amount of future income a debtor will in fact have available
after deducting specified expenses to repay creditors.
Requiring debtors to pay unsecured creditors all of their
projected disposable income over the duration of the
repayment plan – even if that figure includes future RRA
annuity income – does not allow the debtor or the debtor’s
creditors to receive RRA annuity payments “before the date
Congress has set for any interest to accrue.” Id. The debtor

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simply makes payments to unsecured creditors each month in
accordance with the terms of the plan, using the debtor’s
“regular income” to do so. 11 U.S.C. § 109(e) (limiting
eligibility for Chapter 13 relief to debtors with “regular
income”). There is no sense in which RRA annuity payments
are “anticipated” as that term is used in 45 U.S.C. § 231m(a).
Contrary to the Scholzes’ suggestion, the holding of
Hamilton v. Lanning, 130 S. Ct. 2464 (2010), has no bearing
on the outcome of this case. The Supreme Court there
resolved a circuit split over whether bankruptcy courts
calculating projected disposable income have the discretion
to make adjustments based on expected changes in future
income, or instead must mechanically calculate a debtor’s
past average monthly disposable income and multiply it by
the number of months in the plan. Id. at 2471. The Court
adopted the former “forward-looking approach,” instructing
courts to start with the presumption that the mechanically
calculated figure is correct but to use their discretion to take
into account “known or virtually certain information about the
debtor’s future income or expenses.” Id. at 2475. That
holding would be relevant only if future changes to the
Scholzes’ financial circumstances were “known or virtually
certain,” as might be the case, for example, if it were known
or virtually certain that Mr. Scholz’s RRA annuity would be
terminated in the future. But no such argument has been
made here.
In sum, we hold that 45 U.S.C. § 231m(a) does not require
courts to exclude RRA annuity income when calculating a
debtor’s “projected disposable income” under 11 U.S.C.
§ 1325(b). Mr. Scholz’s RRA annuity income must be

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included when calculating the Scholzes’ projected disposable
income on remand.
REVERSED and REMANDED.