                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                     July 11, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 In R e: SHEA TH O MA S SWE ENEY,
 a/k/a Shea T. Sw eeney, a/k/a Shea
 SW E EN EY ,
             Debtor.

 C OLO RA D O JU D IC IA L                             No. 06-1224
 DEPARTM ENT,
             Plaintiff–Appellant,
       v.
 SH EA TH O MA S SWE EN EY ,
             Defendant–Appellee.
 PROPERTY CASUALTY INSURERS
 ASSOCIA TIO N,
            Amicus Curiae.



               APPE AL FRO M TH E U NITE D STA TE S
      BANK RUPTCY APPELLATE PANEL O F TH E TENTH CIRCUIT
                        (BAP No. CO -05-56)


M elody M irbaba, Assistant Attorney General (John W . Suthers, A ttorney General,
and M aurice Knaizer, Deputy Attorney General, with her on the briefs), Denver,
CO, for Plaintiff-Appellant.

Raphael M . Solot, Denver, CO, for Defendant-Appellee.

M ark W . W illiams, Cage Williams, P.C., Denver, CO, on the brief for Amicus
Curiae.

Before HA RTZ, M cKA Y, and GORSUCH, Circuit Judges.
M cK A Y, Circuit Judge.


      Plaintiff-Appellant Colorado Judicial Department (“CJD”) appeals the

decision of the Bankruptcy Appellate Panel (“BAP”) reversing the bankruptcy

court for the District of Colorado and concluding that restitution ordered pursuant

to juvenile delinquency proceedings is dischargeable under 11 U.S.C. §

1328(a)(3). CJD argues that an adjudication of guilt resulting from juvenile

delinquency laws is equivalent to a conviction of crime, and, therefore, that

restitution— whether ordered against a juvenile or an adult— is nondischargeable

because it is “included in a sentence on the debtor’s conviction of a crime” under

§ 1328(a)(3).

                                    B ACKGROUND 1

      Defendant–Appellee Shea Thomas Sweeney was adjudicated a juvenile

delinquent at the age of tw elve for having committed second degree arson. As

part of his sentence, M r. Sw eeney was ordered to pay $89,202.10 in restitution.

      Approximately eleven years later and having well surpassed the age of

adulthood, M r. Sweeney filed for Chapter 13 bankruptcy. He listed the roughly

$85,000 outstanding restitution balance as a potentially dischargeable debt. CJD

filed an adversary proceeding challenging the inclusion of the restitution award in




      1
          The parties do not dispute the material facts of the case.

                                           -2-
the Chapter 13 petition. The parties conceded that trial was not necessary and

filed cross-motions for summary judgment. The bankruptcy court awarded CJD

summary judgment after concluding that the restitution award was not

dischargeable under Colorado state law because restitution for juveniles was

governed by Colorado’s Criminal Code, not its separate Children’s Code. M r.

Sweeney appealed and the BAP reversed.

      The BAP, applying federal law, determined that juvenile delinquency is an

adjudication of status, not guilt, and therefore could not be considered a

“conviction of a crime” under § 1328(a)(3). CJD appealed, and we now address

this issue of first impression.



                                     A NALYSIS

      As an initial matter, we observe that we properly maintain jurisdiction over

this appeal despite the BAP’s remand order. W hile a remand order requiring the

bankruptcy court to engage in “significant further proceedings” would not be a

final, appealable order, Homa Ltd. v. Stone (In re Commercial Contractors, Inc.),

771 F.2d 1373, 1375 (10th Cir. 1985), the parties here agree that remand required

only the purely ministerial function of entering judgment in favor of M r.

Sweeney. This does not jeopardize our jurisdiction under 28 U.S.C. § 158(d)(1).

See Wood v. Jones (In re M ontgomery), 224 F.3d 1193, 1194 n.1 (10th Cir. 2000).

      Section 1328(a)(3) excepts from discharge “restitution . . . included in a

                                         -3-
sentence on the debtor’s conviction of a crime.” W hether this subsection includes

restitution ordered pursuant to an adjudication of juvenile delinquency is a

question of statutory interpretation that we review de novo. See Troff v. Utah (In

re Troff), --- F.3d ----, 2007 W L 1314489, at *1 (10th Cir. M ar. 15, 2007).

Nondischargeability is a matter of federal law. See Grogan v. Garner, 498 U.S.

279, 284 (1991).

      Under federal law, juvenile delinquency is defined as “the violation of a

law of the United States committed by a person prior to his eighteenth birthday

which would have been a crime if committed by an adult.” 18 U.S.C. § 5031.

W e previously have stated that this definition means that juvenile delinquency is

“an adjudication of status— not a criminal conviction.” United States v. Brian N.,

900 F.2d 218, 220 (10th Cir. 1990). This interpretation is consistent with the

purpose of the federal Juvenile Justice and Delinquency Prevention Act, 18

U.S.C. § 5031-42 (2006), which is “to remove juveniles from the ordinary

criminal process in order to avoid the stigma of a prior criminal conviction and to

encourage treatment and rehabilitation.” Brian N., 900 F.2d at 220.

      Section 1328(a)(3) of the bankruptcy code precludes dischargeability of

restitution that was “included in a sentence on the debtor’s conviction of a

crime.” CJD argues that dictionary definitions of the word “conviction” illustrate

a uniform understanding of “crime” such that M r. Sw eeney “was found guilty of”

and “w as sentenced for committing the crime of second degree arson.” (A plt.’s

                                          -4-
Opening Br. at 12.) This contention fundamentally mischaracterizes juvenile

delinquency law. As noted above, an adjudication of juvenile delinquency is not

equivalent to a conviction precisely because § 5031 punishes “violation[s]” of the

law that “w ould have been a crime if committed by an adult,” 18 U.S.C. § 5031

(emphasis added), with a classification of “status” as opposed to “criminal

conviction.” Brian N., 900 F.2d at 220.

      W e observe that the same holds true under Colorado law, which likew ise

separates juvenile delinquency from criminal conviction. Under the Colorado

Children’s Code, a juvenile delinquent is one who has been adjudicated such after

having been found “guilty of a delinquent act.” Colo. Rev. Stat. § 19-1-103(71)

(2006); id. § 19-1-103(2); see C.B. v. People, 122 P.3d 1065, 1066 (Colo. Ct.

App. 2005) (“A delinquency adjudication . . . is a special statutory proceeding

that is noncriminal in nature.”). The fact that Colorado Children’s Code § 19-2-

918, which imposes mandatory restitution for damages caused by delinquent acts

to real or personal property, cross-references the State’s criminal code provisions

on restitution is of no moment. Restitution for delinquent acts is not imposed

pursuant to the State’s criminal code; the criminal code merely controls

enforceability. The federal juvenile delinquency statute makes a similar cross-

reference, but that also does not change the provision under which restitution is

imposed.

      CJD and the amicus curiae also make lengthy public policy arguments. The

                                          -5-
crux of these arguments is that permitting juvenile delinquents to escape

restitution simply by filing for bankruptcy undercuts not only the rehabilitory and

anti-recidivist purposes behind juvenile delinquency laws, but also the

compensatory purpose of restitution. However, the public policy effects are not

ours to resolve in the face of unambiguous statutory language. As CJD points

out, Congress enacted § 1328(a)(3) “to eliminate a loophole.” (Aplt.’s Opening

Br. at 24.) W hether due to a lack of foresight or an intentional limitation, the

provision as written does not encompass juvenile-delinquency-related restitution,

and therefore it is not the province of this court to close that loophole.

      W e are not convinced that Congress’ failure to paint in broad strokes

violates the principle of comity or infringes states’ rights. As M r. Sweeney notes,

“[t]his argument makes little sense when you consider that prior to enactment of §

1328(a)(3) in 1990 all state restitution orders were dischargeable in a Chapter 13

proceeding[].” (Aple.’s Br. at 10 (citing Pa. Dep’t of Welfare v. Davenport, 495

U.S. 552, 563 (1990)).) Nor is this limited avenue for restitution avoidance likely

to result in a deluge of juvenile delinquents rushing into bankruptcy once

reaching the age of adulthood. M r. Sw eeney did not immediately file for

bankruptcy upon turning eighteen, and the probation office had long before

determined M r. Sweeney’s inability to pay.

      Thus, the decision of the Bankruptcy Appellate Panel is AFFIRM ED.




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