                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


U.S. DEPARTMENT OF HEALTH &            
HUMAN SERVICES,
                Plaintiff-Appellant,
                and
GREAT LAKES HIGHER EDUCATION
SERVICING CORPORATION, Agent for                 No. 02-2056
Associated Bank,
                          Plaintiff,
                 v.
ZANE TODD SMITLEY,
              Defendant-Appellee.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                  (CA-01-550-5, S-00-00097-5-AP)
                        Argued: June 5, 2003
                      Decided: October 20, 2003
      Before MICHAEL, MOTZ, and KING, Circuit Judges.


Reversed by published opinion. Judge Motz wrote the majority opin-
ion, in which Judge King joined. Judge Michael wrote a dissenting
opinion.


                             COUNSEL

ARGUED: Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellant. Douglas Quinn Wickham,
2              U.S. DEPARTMENT OF HEALTH v. SMITLEY
HATCH, LITTLE, BUNN, L.L.P., Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney,
Neal I. Fowler, Assistant United States Attorney, Raleigh, North Car-
olina, for Appellant.


                             OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

  In this Chapter 7 case, the United States Department of Health and
Human Services (HHS) appeals the district court order affirming the
bankruptcy court’s discharge of the Health Education Assistance
Loans ("HEAL loans") of Zane Todd Smitley. Because the district
court erred in holding that nondischarge of the HEAL loans would be
unconscionable, as is required by 42 U.S.C.A. § 292f(g) (West 2003),
we reverse.

                                 I.

   From 1983 through 1985, Smitley obtained approximately $27,000
in HEAL loans in order to attend the Cleveland Chiropractic College.
After Smitley graduated in September 1985, the holder of the loans,
Student Loan Marketing Association (SLMA), provided Smitley a
repayment schedule, with payments to start in September 1986. From
August 1986 through May 1988, Smitley requested and received four
forbearances; he made no payments during those times. After the for-
bearances, Smitley failed to keep his HEAL loan payments current.

   Smitley’s default resulted in assignment of the loans to HHS. In
November 1991, HHS notified Smitley of the assignment, and the
parties entered into a Repayment Agreement. At that time, the total
debt amount equaled approximately $42,000. From March 1992
through August 1999, Smitley made monthly payments of $100, total-
ing $7,600. Despite his promise in the Repayment Agreement to "in-
crease [his] monthly payment with the month following any increase
in income," Smitley did not increase the monthly payments, even
though his income substantially increased over those years (to more
than $80,000 in one year).
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                   3
   On October 26, 1999, Smitley and his wife filed a Chapter 7 peti-
tion in the bankruptcy court. On February 11, 2000, they received a
general discharge of over $100,000. On February 7, 2000, Smitley
filed the instant adversary proceeding against HHS, the Educational
Credit Management Corporation (ECMC), and the Great Lakes
Higher Education Corporation.1 Smitley sought discharge of approxi-
mately $63,000 of principal and interest in HEAL loans and an addi-
tional $68,000 in principal and interest in educational loans owed to
ECMC.2

   On April 12, 2001, the bankruptcy court held a trial on the adver-
sary proceeding. The parties agree that the facts of this case are undis-
puted. At the time of trial, Smitley was 47 years old, in good health,
and lived in Raleigh, North Carolina. He had received an undergradu-
ate degree in secondary education and worked as a secondary school
teacher prior to seeking his chiropractic degree. After chiropractic
school, Smitley purchased a practice from another chiropractor and
practiced for approximately 13 years. During that time, Smitley had
a fire in his office, suffered an injury that kept him out of work for
six weeks, and incurred medical bills of $22,000, which Mrs. Smitley
testified had been paid off at the time of trial. In 1999, he closed his
chiropractic practice because of financial difficulties.

   Since closing the practice, Smitley has worked part-time as a car-
penter. Smitley now works 30-38 hours per week as a finish trim car-
penter, earning $15 per hour. He testified that he had not "explored
the possible hours [he] could get from another finish carpenter" job.

   Both his chiropractic and secondary education licenses had lapsed
at the time of trial. Smitley has made a few attempts to obtain part-
time or evening jobs at retailers and grocery stores. He also applied
for a few teaching jobs at the university level and testified that people
at his church had looked for management jobs for him. But Smitley
did not seek teaching positions at the high school level, positions as
a factory foreman (for which he had prior experience), positions in
  1
    The Great Lakes Higher Education Corporation did not participate in
the adversary proceeding because ECMC is its successor in interest.
  2
    The record indicates that Smitley paid approximately $10,000 toward
his ECMC loans.
4                 U.S. DEPARTMENT OF HEALTH v. SMITLEY
other geographic areas (except for a teaching position at a college in
Ohio), or employment counseling of any kind.

   At the time of the trial, Smitley’s wife was 45 years old. Mrs. Smit-
ley works about 30-35 hours per week, for $12-$13 per hour, as an
assistant to two dentists. She testified that she cannot work additional
hours because of undiagnosed problems with her hands.

   In April 2001, the Smitleys had four children under the age of eigh-
teen: 17-year-old twins and two other children ages 14 and 8. The
children have health insurance through the State, but Smitley and his
wife do not have health insurance.

   From 1995 through 2000, the Smitleys reported the following
annual income to the Internal Revenue Service: $83,064 (1995),
$58,053 (1996), $63,691 (1997), $58,354 (1998), $40,675 (1999), and
(approximately) $42,000 (2000). The Smitleys made substantial dona-
tions to their church during some of those years — $5,800 in 1995,
$4,700 in 1996, and $3,000 in 1997. The family rents a two-story,
three-bedroom house for $1,250 per month in Raleigh, North Caro-
lina. Mrs. Smitley has a retirement account of approximately $10,000,
consisting of her employer’s contributions. The family owns two
automobiles, on one of which, a van, they owe a monthly payment of
$434 per month.3 Members of the family’s church occasionally
donate money and other items to them. The Smitleys often pay bills
a month behind, and owe about $14,000 in back federal and state
taxes; the IRS has set-up a payment plan of $100 per month on the
federal taxes.

  Smitley stated the following basis for his "belief that the debt to the
United States should be discharged based on unconscionability":

        We are both working 33 to 38 hours a week, continuing to
        pursue our jobs to be able to support ourselves and our fam-
        ily. We are both employed, have good jobs. We are unable
        to pay our regular bills. Our children must earn their own
    3
  At the time of the trial, one of the vehicles needed repair work that
would be delayed until the Smitleys had paid a $500 bill from their
mechanic.
                 U.S. DEPARTMENT OF HEALTH v. SMITLEY                   5
      money to do activities. Our teenage daughters are unable to
      get a driver’s license because we cannot afford insurance.
      [We] cannot afford health insurance, and it is not offered by
      our employers. Therefore, we must pay all of our own medi-
      cal bills. We have no way at this time to pay all of our bills,
      save for the future, or make plans for our children’s futures.

Smitley testified that he had not made any efforts since the bank-
ruptcy filing to consolidate his loans in order to reduce the monthly
payments.

   On April 13, 2001, the bankruptcy court issued an order, finding
that Smitley "is probably underemployed as a carpenter, but he has no
prospects for other employment." It stated that "[i]t is apparent to the
court that Mr. Smitley cannot possibly repay his educational loans
that total more than $170,000 [sic]."4 The court noted that inability to
pay is not the test for dischargeability; rather it recognized that the
test for the HEAL loans is "unconscionability" under § 292f(g) and
that the test for the ECMC loans is "undue hardship" under 11
U.S.C.A. § 523(a)(8) (West 1993 & Supp. 2003). The court held that,
"although the debtor is unable to pay the full amount of the loans, he
may be able to pay a part of the loans." Because Smitley had not
availed himself of the lenders’ programs for financially disadvantaged
borrowers, the court concluded that it could not determine whether
the debts should be discharged. It ordered Smitley to apply to the
lenders for consideration under these programs and report back to the
court.

   After Smitley reported back that (based on a total loan amount of
$135,000, an annual gross income of $42,000 and four dependents),
the minimum payment under the lenders’ programs would be $327.67
per month, the bankruptcy court ordered both the $63,000 in HEAL
loans and the $68,000 in ECMC loans discharged. Assuming an inter-
est rate of 8.19%, the court believed that interest would accrue on
both loans at $11,000 per year and the minimum payment would
  4
   Actually, the total loan debt (both the HEAL and ECMC loans)
equaled approximately $131,000; it appears that the $170,000 figure was
a typographical error, although it could have influenced the bankruptcy
judge’s decision.
6                  U.S. DEPARTMENT OF HEALTH v. SMITLEY
amount to just under $4,000 per year ($327.67 x 12). The bankruptcy
court recognized the differing standards governing discharge of the
HEAL and non-HEAL loans, but concluded that it would be "uncon-
scionable" to refuse to discharge both loans. The court reasoned:

        Even if Mr. Smitley were to make the payments according
        to the repayment schedule submitted, not only would he
        never fully repay the loan, but he would also never reduce
        the principal due. Instead, the amount would continue to
        increase. The prospects for Mr. Smitley to make higher pay-
        ments in the future are not good, and if the balance contin-
        ues to increase, the chances of his ever repaying the loans
        are nil. In the context of the bankruptcy proceeding, the
        court finds that requiring the debtor to continue to pay this
        debt for the rest of his life, with no hope of a final payment,
        is unconscionable. The HEAL loan, therefore, shall be dis-
        charged. . . . [and] Mr. Smitley’s loans from Educational
        Credit shall also be discharged.

   The district court affirmed the bankruptcy court’s discharge order,
holding that "[b]ased on the reasoning of the Bankruptcy Court, and
this Court’s evaluation of Debtor’s dire financial situation, this Court
finds that nondischarge of Smitley’s outstanding student loans would
be unconscionable in this case." It held that Smitley had met both the
undue hardship and the unconscionability standards.

  This appeal involves only discharge of the HEAL loans; ECMC did
not appeal the discharge of its loans.

                                      II.

   The sole question before us is whether the nondischarge of Smit-
ley’s HEAL loans would be "unconscionable" under § 292f(g)(2).5
    5
    In addition to the unconscionablity requirement, § 292f(g) also
requires that a discharge be granted only after the expiration of the
seven-year period beginning on the first date when repayment of such
loan is required, exclusive of any period after such date in which the
obligation to pay installments on the loan is suspended and upon the con-
dition that the Secretary shall not have waived the Secretary’s rights to
apply subsection (f) of this section to the borrower and the discharged
debt. See § 292f(g)(1), (3). The parties do not dispute that these require-
ments have been satisfied.
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                    7
   We begin with the standard of review. The determination of the
meaning of "unconscionable" constitutes a question of law reviewed
de novo. See, e.g., In re Ekenasi, 325 F.3d 541, 544 (4th Cir. 2003)
("We review the bankruptcy court’s . . . legal conclusions de novo.")
(citing In re Kielisch, 258 F.3d 315, 319 (4th Cir. 2001)).

   In addition, both parties assert, and we agree, that application of the
unconscionability standard to the facts of this case constitutes a mixed
question of law and fact, requiring "a conclusion regarding the legal
effect of the Bankruptcy Court’s findings as to [the debtor’s] circum-
stances." In re Long, 322 F.3d 549, 553 (8th Cir. 2003) (holding ques-
tion of "undue hardship" for discharge of educational loans reviewed
de novo). We review mixed questions of law and fact "under a hybrid
standard, applying to the factual portion of each inquiry the same
standard applied to questions of pure fact and examining de novo the
legal conclusions derived from those facts." Gilbane Bldg. Co. v. Fed.
Reserve Bank of Richmond, 80 F.3d 895, 905 (4th Cir. 1996) (citation
omitted); see also In re Hornsby, 144 F.3d 433, 436 (6th Cir. 1998)
(applying clearly erroneous standard of review to factual findings
underlying "undue hardship" determination, which court reviews de
novo); Fed. R. Bankr. P. 8013 (West 1984 & Supp. 2003) ("Findings
of fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the bankruptcy court to judge the credibility of the wit-
nesses.").

   We note that this approach accords with that of the only circuit to
have passed on the question in connection with HEAL loans, as well
as all of the circuits to have considered the lesser "undue hardship"
standard for other educational loans under § 523(a)(8)(B). See In re
Rice, 78 F.3d 1144, 1148 (6th Cir. 1996) (holding that question of
whether nondischarge of a HEAL loan is unconscionable reviewed de
novo (citation omitted)); see also In re Long, 322 F.3d at 553 (collect-
ing cases and joining Second, Third, Sixth, Seventh, Ninth, and Tenth
circuits in holding that question of whether nondischarge of a loan
constitutes an "undue hardship" under § 523(a)(8)(B) is reviewed de
novo).

  In the case at hand, the parties agree that the facts are undisputed.
Thus, our task involves de novo consideration of two legal questions:
8               U.S. DEPARTMENT OF HEALTH v. SMITLEY
the meaning of "unconscionable" under § 292f(g) and the application
of that standard to the discharge of Smitley’s HEAL loans.

                                  III.

                                   A.

   Congress has not defined "unconscionable" as used in § 292f(g),
and we have not addressed the question in a published opinion. The
Supreme Court has directed, however, that "[i]n the absence of an
indication to the contrary, words in a statute are assumed to bear their
‘ordinary, contemporary, common meaning.’" Walters v. Metro.
Educ. Enters., Inc., 519 U.S. 202, 207 (1997) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)
(internal quotation marks and citation omitted)).

   The dictionary defines "unconscionable" as "excessive;" "exorbi-
tant;" "lying outside the limits of what is reasonable or acceptable;"
"shockingly unfair, harsh, or unjust;" or "outrageous." Webster’s
Third New International Dictionary 2486 (1993); see also Matthews
v. Pineo, 19 F.3d 121, 124 (3d Cir. 1994) (so construing term "uncon-
scionable" as used in 42 U.S.C.A. § 254o(d)(3)(A), which establishes
conditions for discharge in bankruptcy of National Health Service
Corps scholarship obligations). In light of the common meaning of
unconscionable, we agree with the Sixth Circuit (the only circuit to
have previously construed the term in § 292f(g)), that there is "little
doubt that in using this term [Congress] intended to severely restrict
the circumstances under which a HEAL loan could be discharged in
bankruptcy." Rice, 78 F.3d at 1148.

   The unconscionability standard is stringent, demanding more than
the "undue hardship" standard for the discharge of educational loans
under § 523(a)(8)(B) (the standard applicable to the ECMC loans in
this case). See id. at 1149 (citing, inter alia, Malloy, 155 B.R. 940,
945 (E.D. Va. 1993), aff’d, 23 F.3d 402 (4th Cir. 1994) (unpub-
lished)); see also In re Wood, 925 F.2d 1580, 1583 (7th Cir. 1991)
(noting that unconscionability is a "higher standard" than undue hard-
ship). Moreover, the debtor bears the burden of proving unconsciona-
bility, and "[g]iven the strict nature of the unconscionability standard,
this burden is a heavy one." Rice, 78 F.3d at 1149 (citation omitted).
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                   9
   In determining whether nondischarge of a HEAL loan meets this
stringent standard, a court must focus on the "totality of the facts and
circumstances surrounding the debtor and the obligation." Id.; see
Malloy, 155 B.R. at 945; In re Barrows, 182 B.R. 640, 650-51
(Bankr. D.N.H. 1994); In re Emnett, 127 B.R. 599, 602 (Bankr. E.D.
Ky. 1991). The relevant objective factors include "the debtor’s
income, earning ability, health, educational background, dependents,
age, accumulated wealth, and professional degree." Rice, 78 F.3d at
1149 (citing Barrows, 182 B.R. at 650; Malloy, 155 B.R. at 945; In
re Quinn, 102 B.R. 865, 867 (Bankr. M.D. Fla. 1989)). A court
should also examine the debtor’s standard of living, "with a view
toward ascertaining whether the debtor has attempted to minimize the
expenses of himself and his dependents." Rice, 78 F.3d at 1149 (cita-
tion omitted); Ekenasi, 325 F.3d at 546 (under "undue hardship" test,
debtor must show, inter alia, "that he cannot maintain a minimal stan-
dard of living for himself and his dependents, based upon his current
income and expenses, if he is required to repay the student loans")
(citing Brunner v. New York State Higher Educ. Servs. Corp., 831
F.2d 395, 396 (2d Cir. 1987) (per curiam)).

   A court should determine if "the debtor’s current situation is likely
to continue or improve," including "whether the debtor has attempted
to maximize his income by seeking or obtaining stable employment
commensurate with his educational background and abilities" and
whether he could supplement his income through secondary part-time
or seasonal work, "[e]ven if the debtor is already employed full-time."
Rice, 78 F.3d at 1149-50 (citing, inter alia, Matthews, 19 F.3d at 124
("[t]he proper inquiry is whether it would be ‘unconscionable’ to
require [the debtor] to take any available steps to earn more
income")); see also In re Zierden-Landmesser, 214 B.R. 300, 304
(Bankr. M.D. Pa. 1997) (concluding that it was not unconscionable to
require debtor to earn more income by relocating business or leaving
medical "profession entirely to seek alternative employment"). A
court should also consider whether any dependents of the debtor "are,
or could be, contributing financially to their own support." Rice, 78
F.3d at 1150.

   Finally, the amount of the debt and the rate of interest are relevant.
Id. at 1149. But when weighing these factors, a court must also con-
sider the debtor’s role in accruing the amount of debt, including
10              U.S. DEPARTMENT OF HEALTH v. SMITLEY
requesting multiple forbearances and making minimal repayments.
See, e.g, Rice, 78 F.3d at 1150-51 ("[T]he current substantial amount
of the debt was largely Rice’s own doing. His minimal repayments,
some made involuntarily, reflect little effort to satisfy the original
$20,000 obligation. This factor weighs particularly strongly against
discharge in this case. . . ."); Malloy, 155 B.R. at 948 ("[M]uch of the
accrued interest on Malloy’s debt is attributable to his own conduct
in requesting forbearance and in failing to seek discharge in bank-
ruptcy at an earlier date."); see also United States v. Kephart, 170
B.R. 787, 792 (Bankr. W.D.N.Y. 1994) (holding, in § 254o case, that
"[i]t would be perverse to allow the debtor to benefit from her own
inaction, delay and recalcitrance by automatically granting discharge
simply because the debt is a sizeable one. This, of course, would ben-
efit those who delay and obstruct the longest and could encourage
other students to follow the course taken by" the debtor). In this
regard, the court "should examine the debtor’s previous efforts to
repay the HEAL obligation, including the debtor’s financial situation
over the course of time when payments were due; the debtor’s volun-
tary undertaking of additional financial burdens despite his knowl-
edge of the outstanding HEAL debt; and the percentage of the
debtor’s total indebtedness represented by student loans." Rice, 78
F.3d at 1150.

                                   B.

   To flesh out the unconscionability standard, we have canvassed the
decisions of courts applying that standard to the varied financial situa-
tions faced by HEAL debtors. After analyzing the above factors,
courts have found nondischarge of HEAL loans unconscionable only
in rare cases. See id. ("Given the extreme nature of Congress’ chosen
standard for the discharge of HEAL loans, we believe that in all but
the most difficult cases the question of whether the debtor has satis-
fied that standard will be obvious.").

   Thus, courts generally have refused to hold nondischarge uncon-
scionable even though the debtor earned only a modest income and
the amount of the HEAL debt was substantial. For example, in Rice,
the debtor owed $77,000 in HEAL loans and his family, which
included three children (ages 10, 7, and 4), grossed $60,000 annually.
Id. at 1147, 1150-51. Moreover, the debtor, age 41, was relatively
                 U.S. DEPARTMENT OF HEALTH v. SMITLEY                     11
young and healthy, and in all likelihood his income could increase in
the future. Id. at 1147, 1150. The family owned a mortgaged home,
an old automobile, and spent $200 per month for school tuition and
$100 per month for recreation. Id. at 1147, 1151 n.7. The court found
repayment would not force the family to maintain a standard of living
below or even near the poverty level. Id. at 1150. Furthermore, the
substantial amount of the HEAL debt at the time of the petition "was
largely [the debtor’s] own doing" because of his minimal repayments.
Id. at 1150. For all of these reasons, the court held as a matter of law
that nondischarge of this debt was not unconscionable. Id. at 1150.

   Similarly, in Malloy, the district court denied a $62,000 discharge
to the debtor, a thirty-nine-year-old man with no dependents, who had
failed to graduate from medical school, but was college educated. 155
B.R. at 947, 943.6 He lived with a roommate to save on rent and his
mother helped him purchase clothes. Id. at 947. The court, however,
found the debtor "arguably . . . underemployed," earning only $11,500
per year as an assistant activities director at a nursing home, and con-
cluded that the debtor, with effort, could increase his income. Id. at
947. Further, the court noted that the debtor had not made substantial
job search efforts in the prior five years and had requested multiple
forbearances. Id. at 944 n.3, 947-48. Based on these facts, the district
court refused to affirm discharge of the HEAL loan. Id. at 943, 948.

   In re Pinkham, 224 B.R. 728 (Bankr. E.D. Mo. 1998), is also appo-
site. In that case, a debtor, age 43, had borrowed money under the
HEAL program to finance his chiropractic degree, attempted to build
a practice for five years, was unable to do so, and then accepted
employment as a high school science teacher. Id. at 730. The debtor
earned only $40,000 per year and did not anticipate earning signifi-
cantly more in the foreseeable future. Id. He supported his wife (who
did not work outside of the home), and two children, ages 11 and 15.
Id. But, the court noted that the debtor "could supplement his earnings
with seasonal employment," that he was not in "less than average"
health, and that he had not argued that his wife and sons were "unable
to contribute financially toward their support." Id. at 733. On these
  6
   Malloy received discharges of approximately $34,000 in other educa-
tional loans, rulings not appealed to the district court. Id. at 943, 944-45.
12              U.S. DEPARTMENT OF HEALTH v. SMITLEY
facts, the court refused to discharge $132,000 in HEAL debt. Id. at
730, 733.

   In In re Barrows, 182 B.R. 640, 643 (D.N.H. 1994), the debtor, a
dentist, sought a discharge of $186,000 in HEAL loans. The debtor’s
combined family income ranged from $55,000 to only $20,000 in the
years immediately prior to the bankruptcy court’s decision. Id. at 646.
Moreover, the debtor had entered into an agreement with the IRS to
use her annual salary above $20,000 for several years to satisfy back
payroll taxes. Id. The debtor and her husband, who had no depen-
dents, lived in a condominium owned by the debtor’s aunt to whom
they paid rent. Id. The bankruptcy court noted that the debtor suffered
from "a series of physical problems relating to various illnesses
including iritis, episodes of lupus, and back trouble resulting from
spina bifida, a birth defect." Id. at 647. Yet, despite the debtor’s rela-
tively low income and her health problems, the bankruptcy court
refused to discharge either $186,000 in HEAL debt or $28,000 in
other educational loans. Id. at 644 n.6, 649-50, 652. It reasoned that,
although the debtor had suffered setbacks in her dental practice, she
had a promising future, and that her history had "shown that her ill-
nesses [were] not so severe that she [was] permanently unable to
work." Id. at 649.

   In In re Borrero, 208 B.R. 792, 794 (Bankr. D. Conn. 1997), aff’d,
1997 WL 695515, at *1 (D. Conn. 1997), the unmarried debtor, age
34, had been involuntarily dismissed from medical school. He worked
as a lab technician, earning $31,000 per year, with the possibility of
earning up to $35,000 over the next few years, but had made only
minimal repayments on his educational loans. Id. at 794-97. The debt-
or’s financial condition had been improved by a general discharge of
$39,000. Id. at 797. Given these facts, the bankruptcy court refused
to discharge $112,000 in HEAL loans, as well as $54,000 in other
educational loans. Id. at 795, 798.

   Similarly, in In re Hines, 63 B.R. 731, 733, 737 (Bankr. S.D.
1986), the bankruptcy court denied an $11,000 HEAL discharge to
another debtor, who had been dismissed from medical school. The
debtor, who was in good health, was married with two children, ages
2 and 4. Id. at 733. He had worked as a chimney sweep, bartender,
satellite dish salesman, and at a nursery. Id. He represented that he
               U.S. DEPARTMENT OF HEALTH v. SMITLEY                 13
averaged only $2,000 per year in income, and his wife earned about
$7,000 per year. Id. At the time of filing for bankruptcy, the debtor
had started a tire business, but still only earned about $262 per month
against $500 in expenses. Id. The bankruptcy court refused to dis-
charge the HEAL debt, explaining that "[n]either several years of
underemployment nor beginning your own tire business" warranted
discharge. Id. at 737.

   Conversely, In re Kline, 155 B.R. 762 (Bankr. W.D. Mo. 1993),
seems to typify the very extreme case warranting discharge of a
HEAL loan. In Kline, the bankruptcy court granted a $36,000 dis-
charge to a debtor who suffered from depression, anxiety, and panic
attacks, and had attempted suicide, been raped at gunpoint by an
employer, sexually harassed at another job, and abused by her spouse.
Id. at 764 n.1, 765. The debtor had worked "several jobs, primarily
near-minimum wage positions," but "[a]t each job, she was fired after
a short period." Id. at 764. At the time of the trial, the debtor had
worked for the prior 10 months as a computer programmer, earning
$21,700 per year, but she apparently lost that job as well. Id. Given
these facts, the court found that the debtor, who had an eight-year-old
son, was "unable to maintain meaningful employment for more than
a short period of time." Id. at 765. The court discharged the HEAL
debt, concluding that the "[d]ebtor has longstanding mental and emo-
tional conditions that the evidence shows are likely to be permanent"
and "[t]hese conditions render her incapable of functioning in a man-
ner to enable her to maintain a job." Id. at 768.

   Similarly, in In re Nelson, 183 B.R. 972, 974, 977 (Bankr. S.D. Fla.
1995), the bankruptcy court granted a HEAL discharge of approxi-
mately $27,000 to a debtor who had a nervous breakdown, was
unable to finish medical school, and suffered from "Recurrent Major
Depression with Psychotic Features, and slight Paranoia." Id. The
debtor earned $9.41 per hour; the bankruptcy court held that the
debtor was "unable to financially support herself, and if she earned
more money, she would only have to pay her true share of her medi-
cal and psychiatric bills." Id. at 977. The court concluded that the
debtor’s "emotional and psychological impairments prevent her from
14              U.S. DEPARTMENT OF HEALTH v. SMITLEY
functioning as a participating member of society and maintaining a
job which would allow her to become totally self-supportive." Id.7

   With this precedent and these principles in mind, we consider the
instant case.

                                   IV.

                                   A.

   We note at the outset that the reasoning of the bankruptcy court,
which the district court largely adopted, was flawed in several
respects.

   First, although the bankruptcy court recognized that it must find
nondischarge of the HEAL loan to be "unconscionable" in order to
justify discharge, the court did not seem to appreciate the very
demanding nature of that standard. Thus, in its brief opinions, the
court did not define or even discuss the meaning of "unconscionable."
It did not mention a single case involving this standard or engage in
any discussion of many of the relevant considerations set forth above.

   Second, while the bankruptcy court recognized that differing stan-
dards govern discharge of the ECMC loans and the HEAL loans, its
analysis improperly combined the loans. See J.A. 260 ("It is apparent
to the court that Mr. Smitley cannot possibly repay his educational
loans that total more than $170,000 [sic][.]"8); J.A. 271 ("Even if Mr.
Smitley were to make the payments according to the repayment
schedule submitted [for both loans], not only would he never fully
repay the loan, but he would also never reduce the principal due.").
This approach is flawed. Because different standards control dis-
  7
     In In re Soler, 261 B.R. 444, 448, 452-53 & n.3 (Bankr. D. Minn.
2001), the bankruptcy court granted a discharge of some HEAL loans to
a debtor who had health problems exacerbated by her work as dentist,
had made repaying her student loans "the driving force" in her life, and
lived an extremely frugal life. Id. (emphasis in original).
   8
     As noted above, the $170,000 figure is erroneous; the record is clear
that the total due on the HEAL and non-HEAL loans approximated
$131,000.
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                     15
charge of the loans — with the HEAL loans subject to the more strin-
gent unconscionability standard — the bankruptcy court should have
considered the HEAL and non-HEAL (ECMC) loans separately,
rather than focusing on the combined total amount of indebtedness.
The court should have initially considered discharge of the non-
HEAL (ECMC) loans, subject to the lesser undue hardship standard,
since the disposition of that debt could affect the unconscionability
analysis, especially because the bankruptcy court determined to dis-
charge the non-HEAL (ECMC) loans. See, e.g., Barrows, 182 B.R. at
648-50; In re Greco, 251 B.R. 670, 675, 678 (Bankr. E.D. Pa. 2000);
In re Borrero, 208 B.R. at 795, 797-98. Furthermore, improperly con-
sidering the HEAL and non-HEAL (ECMC) loans together led the
bankruptcy court to conclude that the interest would accrue faster
($11,000 per year) than the annual income contingent payments
($4,000 per year). If the court had initially considered the non-HEAL
(ECMC) loans, it would not have so concluded, particularly given its
discharge of those loans. Then only the HEAL loans would remain,
and the record indicates that interest on the HEAL loans has accrued
"at the rate of 8.25% per annum and a rate of $8.98 per day" or
$3,277 per year.9 Therefore, the income contingent payment of $327
per month, or approximately $4,000 per year, would result in full pay-
ment of the accruing HEAL interest plus some principal.
  9
    Based on these figures, the record suggests that interest is only calcu-
lated on the stipulated $40,954 principal balance, which yields an annual
interest payment of approximately $3,300 ($40,954 x 8.25% = $3,378).
(The principal balance figure of $40,954 is the state court judgment
amount obtained by Student Loan Marketing Association and assigned
to HHS, and the remainder of the $63,000 total HEAL debt is $22,569
in accrued interest.) We recognize, of course, that 8.25% per year based
on a total debt amount of $63,000 yields a larger annual interest accrual
than $3,300 (i.e., $63,000 x 8.25% = $5,197). But at oral argument HHS
counsel repeated the figure of $8.98 per day and roughly estimated an
annual interest accrual of $3,300 — without challenge from Smitley’s
counsel. We further note that this state court judgment set an interest rate
of 8%, as did the Repayment Agreement between Smitley and HHS. At
oral argument, HHS asserted, however, that interest is currently accruing
at a lower rate (under 5%), given the historically low interest rates at the
present time. We do not rely on the current lower interest rate because
HHS pointed to no record evidence supporting it and the rate could pre-
sumably rise again in the future.
16              U.S. DEPARTMENT OF HEALTH v. SMITLEY
   Finally, the bankruptcy court misinterpreted the undisputed facts in
concluding that Smitley would continue to pay the HEAL loans for
the rest of his life. The Direct Loans Repayment Calculator Summary
and Smitley’s letter, both in the record and submitted in response to
the bankruptcy court’s order, indicate that the income contingent
"plan has a maximum term of 25 years." Moreover, at oral argument
before us, Smitley’s counsel conceded that the plan would only
require 25 years of payment, followed by forgiveness of the debt. Cf.
http://www.ed.gov/directloan (Interactive Calculators/Description of
Repayment Plans) (last visited July 7, 2003) ("If you haven’t fully
repaid your loans after 25 years under this plan, the unpaid portion
will be discharged. You will, however, have to pay taxes on the
amount that is discharged."). Thus, under the income contingent
repayment plan, Smitley would only pay toward the HEAL debt for
25 years, and he would do so at a rate that would cover both the
accruing interest and some principal.10

                                  B.

   If the bankruptcy court had applied the correct legal analysis to the
undisputed facts, it could only have concluded that it would not be
"unconscionable," i.e. "shockingly unfair, harsh or unjust," to deny
discharge of Smitley’s HEAL loans.

   The Smitley family grossed $42,000 per year in 2000, the year
immediately following the bankruptcy filing. This is not a substantial
income, but, as in Rice, 78 F.3d at 1150, repayment of the HEAL loan
would "not force" the family "to maintain a standard of living below
or even near the poverty level." See Annual Update of HHS Poverty
Guidelines, 65 Fed. Reg. 7555 (Feb. 15, 2000) ($22,850 for a family
of six); cf. Hines, 63 B.R. at 733 (denial of discharge to debtor, with
spouse and two young children, grossing only $9,000 per year in
1986). Although not dispositive, the Poverty Guidelines provide at
least a modicum of objectivity in assessing unconscionability. Cer-
tainly no court has suggested and not even Smitley contends, as the
  10
    Even if the annual interest accrual outpaced Smitley’s annual income
contingent payments, the fact that the debt would be forgiven after 25
years renders that point moot and certainly would not support a finding
of unconscionability in this case.
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                 17
dissent seems to, that if his family income (after taxes) does not
exceed twice the "government-set poverty figure" for a family of six
that this should be a factor weighing in favor of discharge.

   Like debtors denied HEAL discharges in other cases, Smitley, age
47 at the time of trial, enjoys good health. See Rice, 78 F.3d at 1150
(noting that debtor was "relatively young as well as healthy"); Malloy,
155 B.R. at 943, 947 (noting debtor’s good health); Borrero, 208 B.R.
at 794 (same); Hines, 63 B.R. at 733 (same); Pinkham, 224 B.R. at
733 (considering debtor’s relatively young age, 43, and good health);
cf. Barrows, 182 B.R. at 649 (denying HEAL discharge despite debt-
or’s "series of physical problems"). Thus, this factor too weighs
against discharge.

   Moreover, both Smitley and his wife have stable employment,
another factor weighing against discharge. See Rice, 78 F.3d at 1150.
Perhaps even more importantly, neither of the Smitleys works 40
hours per week and, like the debtor in Malloy, 155 B.R. at 944 n.3,
947-48, Smitley has not made substantial job search efforts. Contrary
to the suggestion of our friend in dissent, the bankruptcy court’s find-
ing (which we do not "ignore," see supra at 23) that Smitley "has no
prospects for other employment," is not a finding that Smitley would
not have had such prospects if he had made substantial job search
efforts to find other employment. Indeed, the bankruptcy court also
found, Smitley "is probably underemployed as a carpenter." J.A. 260.
Cf. Malloy, 155 B.R. at 947 (finding that debtor, earning $11,500 per
year as an assistant activities director at a nursing home, "arguably
now underemployed, . . . given his college degree"); see also Hines,
63 B.R. 737 (noting debtor’s "several years of underemployment").

   Even recognizing that Smitley’s chiropractic and teaching licenses
had lapsed at the time of trial, Smitley’s underemployment is appar-
ent. Additionally, we note that Smitley himself acknowledged in testi-
mony before the Bankruptcy Court that he had not "explored the
possible hours [he] could get from another finish carpenter," made
only a few attempts to obtain part-time or evening jobs at retailers and
grocery stores, and did not seek positions as a factory foreman (for
which he had prior experience), positions in other geographic areas
(except for a teaching position at a college in Ohio), or employment
counseling of any kind. J.A. 40-45. Certainly, it would not be "uncon-
18              U.S. DEPARTMENT OF HEALTH v. SMITLEY
scionable" to require Smitley to work full-time and to supplement his
income with secondary part-time work.11 See Rice, 78 F.3d at 1150;
Pinkham, 224 B.R. at 730 (debtor, a full-time teacher, could supple-
ment his income with seasonal employment).

   Furthermore, although the amount of the HEAL debt — $63,000
— is significant, it is a good deal less than other HEAL debts that
courts have refused to discharge. See Rice, 78 F.3d at 1147 ($77,000
in HEAL debt); Borrero, 208 B.R. 795, 798 ($112,000 in HEAL
debt); Barrows, 182 B.R. at 643 ($186,000 in HEAL debt); Pinkham,
224 B.R. at 730 ($132,000 in HEAL debt); see also Malloy, 155 B.R.
at 942 ($62,000 in HEAL debt). Moreover, Smitley bears responsibil-
ity for the debt’s escalation from the original $27,000 in HEAL loans.
He requested and received forbearances for almost two years and
made no repayments during that period. J.A. 161. After the forbear-
ance period ended, Smitley repaid his HEAL loan for a few years at
the rate of only $100 per month. The dissent argues that "[w]hat is
important" is whether Smitley’s "forbearances and small payments
were justified." We agree, but in arguing that they were justified here,
the dissent ignores critical undisputed facts. Namely, over the years,
Smitley never increased his monthly $100 HEAL repayment, even
though during this period the family income increased more than
$20,000 to between $60,000 to $80,000 in some years, and Smitley
had agreed in writing with HHS to "increase [his] monthly payment"
on the HEAL debt if he attained "any increase in income." J.A. 50-52;
156. (Emphasis added).12 Thus, this is another factor that weighs
against finding that refusal to discharge Smitley’s HEAL debt would
be unconscionable.
  11
      We accept the undisputed fact that Mrs. Smitley could not, at the
time of trial, work more than 30-35 hours per week because of an
undiagnosed problem with her hands.
   12
      During the same period in which, notwithstanding the substantial
increase in family income, Smitley failed to abide by his promise to
increase his monthly HEAL repayment, the Smitley family made three
annual contributions of $3,000 to $5,800 to charities of their own choos-
ing. See Rice, 78 F.3d at 1150 (court should examine the "debtor’s volun-
tary undertaking of additional financial burdens despite his knowledge of
his outstanding HEAL debt").
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                 19
   In addition, like the debtor in Borrero, 208 B.R. at 794, who was
not granted discharge of $112,000 in HEAL loans, Smitley’s financial
condition has improved because he has received a discharge of other
debts. Smitley, with an income of $42,000 and $63,000 in HEAL
debt, has received a general discharge of over $100,000 and a dis-
charge of the $68,000 ECMC educational debt. However, the debtor
in Borrero, 708 B.R. at 797, with an income of $31,000 (in 1996) and
$112,000 in HEAL debt, was denied a discharge of $54,000 in other
educational debts and granted only a $39,000 general discharge, and
the debtor in Barrows, 182 B.R. at 643-44 & n.6, with a likely com-
bined family income of approximately $30,000 (in the mid-1990s),
was denied a discharge of $186,000 in HEAL debt and $28,000 in
other educational debt.

   Finally, although we have no wish to micromanage anyone’s life,
we must also, with respect, assess Smitley’s claimed expenses to
determine if nondischarge of his HEAL debt would be "unconsciona-
ble." Cf. Rice, 78 F.3d at 1151 ("Because the HEAL discharge stan-
dard is a particularly stringent one, the court must necessarily be
unforgivingly critical in its assessment of the debtor’s claimed
expenses for himself and his dependents."). At the time of the April
2001 trial, two of Smitley’s dependents were 17 years old — just one
year away from majority — and another was also a teenager, leaving
only one child under the age of 10. Smitley rents a two-level, three-
bedroom house for $1,250 a month, owes a car payment of $434 per
month on one of his automobiles (a van), and also lists $100 per
month for recreation, clubs, entertainment, newspapers, and maga-
zines. See id. at 1151 (noting that claimed monthly expenses included
$100 for recreation/vacations). Surely, as his children reach age 18
(and possibly even before), Smitley could at least reduce his monthly
shelter and transportation expenses (or request contributions toward
housing and food from his children after they reach majority).

   Given the totality of the undisputed facts and the stringent standard
for discharge under § 292f(g), nondischarge of Smitley’s $63,000
HEAL debt would not be unconscionable. Moreover, at oral argu-
ment, HHS assured us that it remains willing to work with Smitley on
a repayment program and that he would likely still be eligible for the
income contingent repayment plan. In view of all of these facts, a
court would be hard-pressed indeed to find it "shockingly unfair,
20              U.S. DEPARTMENT OF HEALTH v. SMITLEY
harsh, or unjust" to require Smitley to make income-sensitive repay-
ments toward his HEAL debt for the next 25 years. Rather, in this
case, it would be unfair to require taxpayers, who paid for Smitley’s
chiropractic degree, to bear the burden of discharge.

                                  V.

   For the foregoing reasons, the judgment of the district court is
reversed.

                                                           REVERSED

MICHAEL, Circuit Judge, dissenting:

   Todd Smitley, a Chapter 7 debtor who now works as a carpenter,
has demonstrated that it would be unconscionable to deny him a dis-
charge of his Health Education Assistance Loan (HEAL) debt. Smit-
ley and his wife have no prospects for increasing their income, and
their family’s bare-bones expenses exceed their total income. Smit-
ley’s family will suffer if he is denied a discharge. He will be able to
make payments on his HEAL loan only if he neglects some of the
essential needs of his family. Accordingly, I respectfully dissent from
the majority’s decision to reverse the discharge of Smitley’s HEAL
debt.

   The HEAL program allows graduate students in the health profes-
sions to finance their educations with federally insured loans. See 42
U.S.C. §§ 292, 292o. A HEAL debt may be discharged in bankruptcy,
but the debtor must satisfy a strict standard. Discharge requires "a
finding by the Bankruptcy Court that the nondischarge of [the HEAL]
debt would be unconscionable." Id. § 292f(g)(2). The statute does not
define "unconscionable," and I accept the majority’s choice of the fol-
lowing dictionary definitions of the word: "‘excessive;’ ‘exorbitant;’
‘lying outside the limits of what is reasonable or acceptable;’ ‘shock-
ingly unfair, harsh, or unjust;’ or ‘outrageous.’" Ante at 8 (quoting
Webster’s Third New International Dictionary 2486 (1993)). This
fairly broad definitional range should give a bankruptcy court some
latitude in deciding whether to find that nondischarge would be
unconscionable. For example, it is easier to find that nondischarge
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                   21
would "l[ie] outside the limits of what is reasonable" than it is to find
that nondischarge would be "shockingly unfair" or "outrageous."
Because "what is unconscionable defies precise definition," one bank-
ruptcy court has "likened [unconscionability] to beauty in that it
appears to the senses and is found in the eyes of the beholder." In re
Hines, 63 B.R. 731, 736 (Bankr. D. S.D. 1986).

   In an effort to impose some objectivity, the majority follows other
courts and lists a number of factors that a court may consider in con-
ducting the unconscionability analysis. These factors include the debt-
or’s (1) income, (2) age, (3) health, (4) earning ability, (5) educational
background, including professional degrees, (6) prospects for increas-
ing income, including efforts to make that happen, (7) dependents and
whether they are able to contribute, (8) accumulated wealth, (9) total
HEAL debt (the debtor’s role in accruing the debt, including forbear-
ance requests and payment history, is relevant), and (10) expenses and
ability to pay HEAL debt. See ante at 9-10.

   I do not quarrel with the majority’s list of factors. The list should
be used, however, as a general guide to the examination of the debt-
or’s overall circumstances and his efforts. As the majority points out,
"a court must focus on the ‘totality of the facts and circumstances sur-
rounding the debtor and the obligation.’" Ante at 9 (quoting In re
Rice, 78 F.3d 1144, 1149 (6th Cir. 1996)). Thus, the majority’s list
of factors, which is lengthy, should not be used to reduce the uncons-
cionability analysis to some rigid, formula-driven calculation. This is
because the unconscionability determination is an equitable one. In
the end, the debtor’s good faith, or lack of it, must count for a lot. See
In re Rice, 78 F.3d at 1150 ("[W]e believe the debtor’s good faith to
be an appropriate and necessary consideration" in the unconsciona-
bility determination). When I conduct the de novo review in this case,
applying essentially the same standards as the majority, I come to a
completely different conclusion: it would be unconscionable to deny
Smitley a discharge of his HEAL debt. I will explain why, starting
with the factors listed by the majority.

   (1) Income. Smitley and his wife have a combined gross income of
about $42,000 ($37,000 net of taxes). The majority counts this annual
income level against Smitley, stating that "repayment of the HEAL
loan would not force the family to maintain a standard of living below
22              U.S. DEPARTMENT OF HEALTH v. SMITLEY
or even near the poverty level." Ante at 16 (citing Annual Update of
HHS Poverty Guidelines, 65 Fed. Reg. 7555 (Fed. 15, 2000) (quota-
tion marks omitted)). Because the poverty threshold marks a point of
desperation, I would not use the federal poverty guidelines to gauge
when it becomes unconscionable not to discharge a HEAL debt.
Recent studies indicate that the method currently used by the federal
government to set poverty levels is "conceptually insufficient for
measuring the basic income needs of a working family." Jared Bern-
stein et al., How Much Is Enough? 1 (Economic Policy Institute,
2000) (see also studies cited therein); Measuring Poverty: A New
Approach (Constance F. Citro & Robert T. Michael eds., National
Academy Press, 1995) (proposal by National Research Council for
developing new approach to official poverty measure in U.S.). A
study commissioned by the Economic Policy Institute concludes that
the average family requires income of twice the government-set pov-
erty figure in order to maintain "a safe and decent standard of living."
Bernstein et al., supra, at 1, 64. In 2000, shortly before Smitley’s trial,
poverty level income for a family of six (the size of the Smitley fam-
ily at the time) was $22,850. Doubling that to reach the "safe and
decent" level would require $45,700, or $3,700 more than the Smit-
leys made. The Smitleys are definitely short of the income necessary
to reach the minimum safety level, for they cannot afford health insur-
ance. The Smitleys’ $42,000 gross income level is not adequate by
any reasonable standard, and it should weigh in favor of discharge.

   (2) and (3). Age and health. Smitley was 47 years old at the time
of the trial, so he has a good many years of earning capacity left.
Smitley testified that his health is good, but he said that he had not
had a physical examination for seven years. Smitley had a serious
medical problem a few years ago when he ruptured an artery in his
leg and was hospitalized for ten days. He did not return to full-time
work for six weeks, and his uninsured status left him with $22,000 in
medical bills that he had to pay. A comparable health problem in the
future would likely send the Smitleys back into bankruptcy.

   (4) - (6). Earning ability; education; prospects and efforts for
increasing earnings. The majority notes that "Smitley and his wife
have stable employment" and weighs this against discharge. Ante at
17. Stable employment should not be an automatic penalty. As a gen-
eral rule, it shows good faith and a sense of duty. What is more
               U.S. DEPARTMENT OF HEALTH v. SMITLEY                 23
important is the earnings total (which I have already discussed) and
whether sufficient effort has been made to increase the total. As for
Mrs. Smitley, who works as a dental assistant, the bankruptcy judge
found that "she has no real prospect for advancement" in her employ-
ment. Moreover, the majority accepts that Mrs. Smitley cannot work
more than the weekly total of 30 to 35 hours she puts in at two part-
time jobs. Ante at 18 n.11. She cannot do more as a result of a hand
problem that has not been diagnosed or treated because she cannot
afford to see a doctor.

   As for Smitley himself, the majority concludes that he "has not
made substantial job search efforts" to find a position more appropri-
ate to his level of education or to find part-time work to supplement
his current wages. Ante at 17. This conclusion, which is key to the
majority’s decision, runs head-on into the bankruptcy judge’s finding
that Smitley has no prospects for improving his employment situation.
Specifically, the judge found that Smitley "is probably underem-
ployed as a carpenter, but he has no prospects for other employment."
(emphasis added). Because this finding is not clearly erroneous, it
cannot be set aside. Fed. R. Bankr. P. 8013. Nor can it be ignored.

   Smitley once held a certificate to teach in secondary schools, but
his certificate lapsed more than twenty years ago. His chiropractor’s
license expired in 1999 because he could not afford to enroll in the
required seminars for continuing education. Now, Smitley cannot
afford the courses necessary to prepare for the state board examina-
tions that would be a prerequisite for the reinstatement of his chiro-
practor’s license. Thus, although Smitley’s prior education as a
teacher and a chiropractor make it appear that he is now underem-
ployed in his job as a finish carpenter, the bankruptcy judge was cor-
rect in not holding this against him. Smitley simply lacks the money
to be retrained and relicensed in his prior professions.

   The majority concludes that even if Smitley cannot market himself
as a licensed professional, he did not make substantial efforts to find
either a better job or a supplemental part-time job. See ante at 19-20.
I respectfully suggest that the record shows that Smitley has made an
adequate, albeit unsuccessful, effort to find better work or more work
and that the bankruptcy judge’s finding that he "has no prospects for
other employment" is fully supported. First, Smitley registered with
24               U.S. DEPARTMENT OF HEALTH v. SMITLEY
two employment agencies and followed up with inquiries. Second, he
sought evening and part-time jobs with several grocery stores and
retailers, including Target and Kmart. Third, he applied with Cisco
Systems and got an encouraging response until the company imposed
a hiring freeze. Fourth, he applied to several technical schools and
colleges, including one out-of-state college, for teaching positions in
the science and health care areas. Fifth, he told his current employer
that he needs more hours. Sixth, he talked with members of his church
who are in management positions, letting them know that he is look-
ing for a better job. Finally, at the time of the trial he was still actively
looking for a better position or part-time work. This effort, though
wholly unsuccessful, is sufficient to support the bankruptcy judge’s
finding that Smitley has no real prospects for a better job. In short,
Smitley’s job search has been earnest and adequate, and his lack of
success should not be held against him.

   (7) Dependents and whether they are able to contribute to their
support. The Smitleys have five children, four of whom were depen-
dents on the date of the trial, April 12, 2001. The oldest of the depen-
dents, twin daughters who were seventeen (juniors in high school) on
the date of trial, worked part-time to pay for their activities. The other
two dependents are a son who was around thirteen at trial time and
a daughter who was around seven. The son should be old enough by
now to find some way to contribute.

   (8) Accumulated wealth. The Smitleys have no savings or invest-
ments, and they do not own a home. Mrs. Smitley has a $10,000
retirement account funded by employer contributions.

   (9) Total HEAL debt; forbearances and payment history. Smitley’s
total HEAL debt is $63,000, with interest currently accruing at the
rate of 8.25 percent per year. I cannot argue with the majority’s state-
ment that "Smitley bears responsibility for the [HEAL] debt’s escala-
tion from the original $27,000" because he "received forbearances for
almost two years" and "then paid only $100 per month." Ante at 18.
Forbearances and small payments do not automatically prevent a
debtor from obtaining the discharge of a HEAL debt, however. See,
e.g., In re Soler, 261 B.R. 444, 450 (Bankr. D. Minn. 2001). What is
important is whether the forbearances and small payments were justi-
fied. They were justified in Smitley’s case because, despite reason-
               U.S. DEPARTMENT OF HEALTH v. SMITLEY                 25
able efforts on his part, his chiropractic practice floundered for
thirteen years and finally folded. During this time Smitley and his
wife had to support five children. The majority indicates that the size
of Smitley’s HEAL debt might have been smaller if the Smitleys had
not been so generous with their contributions to their church for three
years (1995-1997) when they made annual contributions of between
$3,000 and $5,800. See ante at 18 n.12. I would not hold these contri-
butions against Smitley. The Smitleys have not lived extravagant
lives, and they no longer contribute to their church. Indeed, in recent
times they have had to rely on the charity of members of their church,
who have given the Smitleys money to help meet expenses.

   (10) Expenses and ability to pay HEAL debt. The majority says that
Smitley’s financial situation has improved because he has received a
discharge of other debts. Yet the reduction of Smitley’s accumulated
debt burden does not tell us very much about whether he can afford
to make monthly payments of $327 against the HEAL debt for the
next twenty-five years. We have to look at the family’s income and
its reasonable expenses to determine Smitley’s ability to pay. The
Smitleys’ income net of taxes is about $37,000 a year, or about
$3,100 a month. The family has monthly living expenses — all of
which appear to be reasonable — of about $3,700, or $600 in excess
of income. Their living expenses include rent ($1,250), utilities
($340), car payment ($434), delinquent tax payments ($300), insur-
ance ($93), clothing ($100), food (approximately $600), gasoline
(approximately $200), and medical expenses ($355). The majority
challenges these expenses by saying that as Smitley’s children reach
age eighteen, he "could at least reduce his monthly shelter and trans-
portation expenses." Ante at 19. Although the twin daughters are now
over eighteen, there is not much room for a reduction of these
expenses. If the twins have moved out of the home, it would be rea-
sonable for the Smitleys to retain the three-bedroom house so that the
two remaining children could have separate bedrooms. Even if the
twins are still at home and working, it is not realistic to expect that
they are a long-term solution to reducing the Smitleys’ expenses for
shelter. And, while the fact that the twins have reached majority
might have brought a marginal reduction in Smitley’s transportation
expenses, I doubt that this reduction would do much to make up the
$600 gap between total expenses and available revenue. Simply put,
26             U.S. DEPARTMENT OF HEALTH v. SMITLEY
the Smitleys do not have the extra money to pay $327 a month against
the HEAL loan.

   (11) Good faith. I sense that the majority has decided that Smitley
has not tried hard enough; specifically, he did not try hard enough to
pay down the HEAL loan while he had his chiropractic office open;
he has not tried hard enough to find a better job or to find part-time
work; and he has not tried hard enough to reduce family living
expenses. Effort and good faith are important to be sure, and I believe
that Smitley has exhibited both in sufficient measure.

   Smitley went to chiropractic school, using a HEAL loan, in order
to do better for himself and his family. After graduating in 1986,
Smitley struggled for thirteen years to make a go of it as a chiroprac-
tor. Much went wrong. He attempted to get started in his new profes-
sion by buying another chiropractor’s practice. Smitley bought what
he thought was a thriving practice, but it proved to be a marginal ven-
ture from the very start. Many of the patients switched to other chiro-
practors, and Smitley did not have the capital to do extensive
advertising. Smitley labored for five or six years to build what might
have been a decent practice. Indeed, in the early part of the 1990s his
practice actually "pick[ed] up" for a time, and it looked as though
Smitley might finally achieve success. Then, he was caught simulta-
neously by hard luck and structural change in the health care industry.
A fire destroyed "almost everything" in Smitley’s office. Not long
after the fire, he ruptured an artery in his leg, was hospitalized, and
lost nearly two months of full-time work. At about the same time, the
advent of health maintenance organizations and preferred provider
organizations cut into Smitley’s patient base. According to Smitley,
he could only afford the fees to participate in two HMOs. Smitley
struggled along in his practice for awhile longer, and before it failed
entirely, he began supplementing his income with part-time finish car-
pentry work. Finally, one day in late 1999, he went to the office and
found that the electricity had been turned off (he could not afford to
pay the utility bill). That was the day Smitley closed his practice.

   The Smitleys have a lifestyle that is quite modest. They live in a
rented house (for several years seven family members were crowded
into their three-bedroom rental). They always buy used cars, and they
do not take vacations. Most of the time they buy their clothing on
                U.S. DEPARTMENT OF HEALTH v. SMITLEY                  27
credit. Smitley and his wife cannot afford health insurance. Their chil-
dren have health insurance through a state public assistance program.
The twin daughters did not get driver’s licenses because the Smitleys
could not afford the extra auto insurance premiums required to cover
young drivers. The Smitleys have no savings, and their three older
children are not going to college. In 1999 Smitley cashed in his life
insurance policy and applied the $9,500 in proceeds to pay the fami-
ly’s bills. Both Smitley and his wife have worked steadily, and they
have managed to provide just the basics for a large family. I believe
they have acted in good faith.

                                 ***

   The examination of the relevant factors reveals that the majority
makes three fundamental mistakes in concluding that it is not uncon-
scionable to deny Smitley a discharge of his HEAL debt. First, the
majority relies too much on the poverty guidelines in denying the dis-
charge. Requiring Smitley to repay the HEAL loan, the majority says,
will not force the Smitleys to live below or even near the poverty
level. The unconscionability threshold, however, is crossed well
before the poverty line is reached. A family requires double the pov-
erty guidelines figure to maintain a decent standard of living, and the
Smitleys’ income is short of the required level. Second, the majority
concludes that Smitley has not made substantial efforts to find a better
job or a part-time job that would supplement his current income. This
conclusion is foreclosed by the bankruptcy judge’s finding that Smit-
ley "has no prospects for other employment." It is thus established as
a fact that Smitley has no prospects for increasing his income. The
same goes for Mrs. Smitley. Third, the majority suggests that Smitley
could somehow reduce the family’s living expenses. As the bank-
ruptcy judge found, the Smitleys’ "monthly expenses exceed their
monthly income." The Smitleys’ expenses are bare bones, covering
mainly the essentials such as rent, utilities, food, clothing, and trans-
portation. The expenses would have to be cut about ten percent to
make room for a monthly HEAL debt payment of $327. An expense
cut of that size would push the Smitley family’s budget to the break-
ing point and deprive the family of any chance for a decent standard
of living. Already, Smitley and his wife cannot afford health insur-
ance. What else will the Smitleys have to do without to make pay-
ments on the HEAL loan? Will they have to move to a two-bedroom
28              U.S. DEPARTMENT OF HEALTH v. SMITLEY
house, depriving their young son and daughter of separate bedrooms?
To save on utility costs, will they have to turn down the thermostat
to the point of discomfort when the weather gets cold? Will they have
to reduce their modest expenses for food and clothing? Cuts like these
will have to be made for Smitley to make payments on the HEAL
debt. That result will, I believe, be detrimental to the stability and
well being of the Smitley family.

   Todd Smitley has acted in good faith, and the other relevant factors
establish that his family is barely getting by. It would be unconsciona-
ble to push Smitley any further and unconscionable not to discharge
his HEAL debt. Because the majority reverses the discharge and rein-
states the HEAL debt, I respectfully dissent.
