          United States Court of Appeals
                        For the First Circuit

No. 13-9009

                       IN RE: LOUIS B. BULLARD,

                               Debtor.


                          LOUIS B. BULLARD,

                              Appellant,

                                  v.

                       HYDE PARK SAVINGS BANK,

                              Appellee.


                        CAROLYN A. BANKOWSKI,

                               Trustee.


              APPEAL FROM THE BANKRUPTCY APPELLATE PANEL
                         FOR THE FIRST CIRCUIT



                                Before

                    Thompson, Stahl, and Kayatta,
                           Circuit Judges.



     David G. Baker for appellant.
     Andrew E. Goloboy, with whom Ronald W. Dunbar Jr. and Dunbar
Law PC were on brief, for appellee.


                             May 14, 2014
           STAHL, Circuit Judge.       This appeal presents an important

and unsettled question of bankruptcy law that, in the case's

present posture, we lack jurisdiction to resolve.          Accordingly, we

dismiss this appeal.

                         I.    Facts & Background

           Like many mortgagors, Appellant Louis Bullard owns real

property whose value is substantially lower than the amount he

still owes the mortgagee.        Appellee Hyde Park Savings Bank (Hyde

Park) holds a mortgage on the property that secures a promissory

note in the original principle amount of $387,000 and with a

maturity date of June 1, 2035. Bullard filed a Chapter 13 petition

in December 2010, at which time he was current on his payment

obligations to Hyde Park.        Hyde Park filed a proof of claim in the

amount of $346,006.54.        The value of the property is disputed, but

all parties agree that it is worth substantially less than the

amount of Hyde Park's claim.

           On January 17, 2012, Bullard filed his third amended

plan.   The plan, a so-called "hybrid" plan, proposed to bifurcate

Hyde Park's claim into secured and unsecured portions per 11 U.S.C.

§ 506(a), with the secured portion being reduced to the value of

the   property.    The    plan     called   for   paying   a   dividend   of

approximately 5.26% on the unsecured portion over sixty months

under 11 U.S.C. § 1322(b)(2) and paying the secured portion

according to the terms of the promissory note under § 1322(b)(5).


                                     -2-
Hyde Park objected, arguing that the plan could invoke either the

modification provision of § 1322(b)(2) or the cure-and-maintain

provision of § 1322(b)(5), but not both.                The bankruptcy court

agreed, sustaining Hyde Park's objection, denying confirmation of

the plan, and ordering Bullard to file an amended plan within

thirty days or else face dismissal.              On Bullard's motion, the

bankruptcy court continued the deadline to file an amended plan

pending the outcome of his appeal.

             Bullard appealed to the Bankruptcy Appellate Panel for

the First Circuit (BAP). Recognizing, though disagreeing with, BAP

precedent holding that denial of confirmation of a reorganization

plan is not a final order appealable as of right, see 28 U.S.C.

§ 158(a)(1); Watson v. Boyajian (In re Watson), 309 B.R. 652, 659

(B.A.P. 1st Cir. 2004) (per curiam), aff'd, 403 F.3d 1 (1st Cir.

2005),    Bullard    also   filed   a   motion   for   leave    to   appeal    the

bankruptcy court's interlocutory order, see 28 U.S.C. § 158(a)(3),

(b)      (granting    bankruptcy        appellate      panels    discretionary

jurisdiction over appeals of interlocutory orders of the bankruptcy

court).    The BAP granted the motion and, on May 24, 2013, affirmed

the bankruptcy court's denial of confirmation (albeit with a

slightly different rationale).

             Bullard filed with the BAP a notice of appeal to this

court and, a few days later, a motion for certification of the

appeal under 28 U.S.C. § 158(d)(2), which the BAP denied.                     This


                                        -3-
court issued an order to show cause why the case should not be

dismissed    for    lack   of    jurisdiction         because       the   BAP's    order

affirming the denial of confirmation did not appear to be a final

order, as required by 28 U.S.C. § 158(d)(1).                         After receiving

Bullard's response, we determined that the case should proceed to

full briefing of both the jurisdictional and merits questions.

                                     II.   Analysis

             We    start   and,       as    it   turns       out,     end   with     the

jurisdictional question.1              Congress has granted the courts of

appeals     "jurisdiction       of    appeals    from       all   final     decisions,

judgments, orders, and decrees entered" by a BAP or district court

sitting in an appellate capacity in bankruptcy proceedings.                           28

U.S.C. § 158(d)(1).         With the Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109–8, 119

Stat. 23, it extended our jurisdiction to reach direct appeals of

the   bankruptcy     court's     orders     (final     or    interlocutory),        upon




      1
       We note that we are considering statutory, rather than
Article III, jurisdiction. We have on occasion sidestepped thorny
questions of statutory jurisdiction to reach the merits of a case,
but only where "precedent clearly dictates the result on the
merits," Alvarado v. Holder, 743 F.3d 271, 276 (1st Cir. 2014), and
the merits question is easily decided in favor of the party
challenging jurisdiction, Restoration Pres. Masonry, Inc. v. Grove
Eur. Ltd., 325 F.3d 54, 59 (1st Cir. 2003).         Because we are
presented with a difficult, unsettled question that we have not
previously addressed, that route is not open to us here.

                                           -4-
certification by the bankruptcy court, district court, or BAP and

authorization by the court of appeals, see 28 U.S.C. § 158(d)(2).2

          Because this appeal comes to us under § 158(d)(1), we

have jurisdiction only if the BAP's order rejecting Bullard's

proposed plan is a final order.3          We have noted that an order of

the BAP cannot be final unless the underlying bankruptcy court

order is final.    Watson v. Boyajian (In re Watson), 403 F.3d 1, 4

(1st Cir. 2005).      "[B]ecause bankruptcy cases typically involve

numerous controversies bearing only a slight relationship to each

other,   'finality'    is   given    a     flexible   interpretation   in

bankruptcy."   Bourne v. Northwood Props., LLC (In re Northwood



     2
       Interlocutory orders of a district court sitting in an
appellate capacity in bankruptcy proceedings are appealable to the
court of appeals under 28 U.S.C. § 1292(b), again upon
certification and authorization. This provision is inapplicable to
orders of the BAP, however. See Vylene Enters. v. Naugles, Inc.
(In re Vylene Enters.), 968 F.2d 887, 890 n.4 (9th Cir. 1992)
("Section 1292(b), by its plain language, affords us jurisdiction
only over orders made by a district judge.     Our decision today
recognizes that a party to a bankruptcy court proceeding who
foresees the need for an interlocutory appeal must forgo the
speedier appellate process afforded by the bankruptcy appellate
panel."); 16 Charles Alan Wright et al., Federal Practice and
Procedure § 3926.1.
     3
       Because Bullard did not receive certification to appeal the
BAP's decision to this court, we need not decide whether
§ 158(d)(2) authorizes an appeal from an interlocutory decision of
the BAP (as opposed to the bankruptcy court) to the court of
appeals where certification has been granted.       See Woolsey v.
Citibank, N.A. (In re Woolsey), 696 F.3d 1266, 1268 (10th Cir.
2012) (noting that the issue is uncertain); Lindsey v. Pinnacle
Nat'l Bank (In re Lindsey), 726 F.3d 857, 858–59 (6th Cir. 2013)
(suggesting   that   parties  could   have   sought   §  158(d)(2)
certification from a district court order).

                                    -5-
Props., LLC), 509 F.3d 15, 21 (1st Cir. 2007) (internal quotation

marks omitted).    This flexibility means that an order may be final

even if it does not resolve all issues in the case, "but it must

finally dispose of all the issues pertaining to a discrete dispute

within the larger proceeding." Perry v. First Citizens Fed. Credit

Union (In re Perry), 391 F.3d 282, 285 (1st Cir. 2004).              We have

recognized that, when an intermediate appellate court "remands a

matter to the bankruptcy court for significant further proceedings,

there is no final order for purposes of § 158(d) and the court of

appeals lacks jurisdiction."        In re Gould & Eberhardt Gear Mach.

Corp., 852 F.2d 26, 29 (1st Cir. 1988).            Conversely, "[w]hen a

remand   leaves    only    ministerial       proceedings,    for     example,

computation of amounts according to established formulae, then the

remand may be considered final."       Id.

           We   have   previously   suggested    that   an   order   denying

confirmation of a reorganization plan may not be a final order so

long as the bankruptcy case has not been dismissed and the debtor

remains free to propose a modified plan.         See Watson, 403 F.3d at

4–5.   In Watson, the parties conceded that the bankruptcy court's

order denying confirmation was not final, so this court did not

expressly rule on the issue.        Id. at 4.     Instead, we held that,

even if the order was not final when issued, it became final when

the bankruptcy court entered an order dismissing the case.             Id. at

5.   The question thus remains open in this circuit.


                                    -6-
          The finality of an order denying confirmation of a

reorganization plan is the subject of a circuit split.   A pair of

recent cases covers the terrain.     The Sixth Circuit joined the

Second, Eighth, Ninth, and Tenth4 Circuits in holding that such an

order is not final if the case has not been dismissed and the

debtor remains free to propose another plan.       See Lindsey v.

Pinnacle Nat'l Bank (In re Lindsey), 726 F.3d 857, 859 (6th Cir.

2013). The Fourth Circuit, over a strong dissent, joined the Third

and Fifth Circuits in holding that such an order can be final, even

if the underlying bankruptcy case has not been dismissed. See Mort

Ranta v. Gorman, 721 F.3d 241, 248 (4th Cir. 2013).

          Bullard urges us to eschew a rigid standard by which an

order denying confirmation is per se not a final order, and, more

expansively, to hold not only that such an order can be final, but

that it should be presumed to be final unless the appellee can show

otherwise. Hyde Park urges us to join the majority of the circuits

and hold that an order denying confirmation is not a final order if

the debtor may still propose an amended plan.    It argues in the




     4
       The Tenth Circuit's approach differs from the approach
adopted by most other circuits, including this one, insofar as it
does not treat finality any differently in the bankruptcy context.
See Simons v. FDIC (In re Simons), 908 F.2d 643, 644 (10th Cir.
1990) (per curiam) (noting that circuit precedent interprets
finality for § 158(d) purposes in accordance with traditional
finality principles); see also Gordon v. Bank of Am., N.A. (In re
Gordon), 743 F.3d 720, 723–24 & n.2 (10th Cir. 2014) (reaffirming
Simons in the face of contrary extra-circuit precedent).

                               -7-
alternative that, even if such an order could be final, Bullard has

not satisfied any flexible standard we might adopt.

          The principles set forth in Perry and Gould & Eberhardt

dictate the result in this case.     An order of an intermediate

appellate tribunal affirming the bankruptcy court's denial of

confirmation of a reorganization plan is not a final order so long

as the debtor remains free to propose an amended plan.         The

rejection of Bullard's plan plainly does not "finally dispose of

all the issues pertaining to a discrete dispute within the larger

proceeding,"5 Perry, 391 F.3d at 285, nor are the bankruptcy

court's responsibilities on remand "only ministerial," Gould &

Eberhardt, 852 F.2d at 29.   The bankruptcy court gave Bullard a

thirty-day deadline to file an amended plan, a deadline that, on

Bullard's motion, the court continued pending the outcome of his



     5
       We are not persuaded by the Fourth Circuit's determination
that rejection of a proposed plan resolves the "discrete issue" of
"whether [a] proposed Chapter 13 plan merits confirmation" and is
therefore a final, appealable order. Mort Ranta, 721 F.3d at 247.
Almost every bankruptcy court order resolves some discrete issue,
but that is not the same as "finally dispos[ing] of all the issues
pertaining to a discrete dispute within the larger proceeding,"
Perry, 391 F.3d at 285; see also In re Comdisco, Inc., 538 F.3d
647, 651 (7th Cir. 2008) (distinguishing discrete issues from
discrete disputes, and likening the latter to "disposition of a
claim that would be final as a stand-alone suit outside of
bankruptcy" (quoting In re Morse Electric Co., 805 F.2d 262, 265
(7th Cir. 1986))). We have described "an order that conclusively
determines a separable dispute over a creditor's claim or priority"
as an example of an order resolving a discrete dispute. In re Saco
Local Dev. Corp., 711 F.2d 441, 445–46 (1st Cir. 1983).          In
contrast, an order denying confirmation would, at most, finally
resolve a discrete issue.

                               -8-
appeal.     Once Bullard files a new plan, his creditors will have an

opportunity to file objections and the bankruptcy court must

determine whether to sustain those objections or confirm the new

plan.      "Nothing about these tasks is mechanical or ministerial

. . . ."    Lindsey, 726 F.3d at 859; see also Gordon v. Bank of Am.,

N.A. (In re Gordon), 743 F.3d 720, 723 (10th Cir. 2014) ("[T]he

bankruptcy court will have to give creditors notice of the new

amended plan, permit time for any objections, and then conduct

another confirmation hearing. All of which is to say, the district

court remanded the [debtors'] case to the bankruptcy court for

significant     further    proceedings.")      (internal      quotation     marks

omitted).      "Essentially    everything      remains   unresolved        in   the

Chapter 13 bankruptcy below. . . . [A]n order cannot sensibly be

final when it not only fails to dismiss the underlying case but

additionally     advises   that   a   party    may   revise    its   own    court

filings."     Mort Ranta, 721 F.3d at 258 (Faber, J., dissenting).

             Bullard argues that the ability to propose an alternative

plan is illusory in this case, as the plan he proposed is the only

feasible plan.    He says that, if he cannot appeal the denial of his

plan, his only options are to propose an unwanted plan, object to

it, and appeal its confirmation, or to allow his petition to be

dismissed and appeal the dismissal.           See also Mort Ranta, 721 F.3d

at 248 (noting that the first option is inefficient and the second

risks loss of the automatic stay, and thus vulnerability to


                                      -9-
foreclosure or collection activities, if a stay pending appeal is

not granted); Bartee    v. Tara Colony Homeowners Ass'n           (In re

Bartee), 212 F.3d 277, 282–83 & n.6 (5th Cir. 2000) (same).

          Bullard's options may be unappealing at this stage in the

game, but he ignores the fact that Congress laid out other options

for him -- options that he did not pursue.         He could have sought

certification and authorization to directly appeal the bankruptcy

court's order to this court under 28 U.S.C. § 158(d)(2). Likewise,

had he chosen to take his intermediate appeal to the district court

rather than the BAP, he could have sought permission to appeal the

district court's interlocutory order under 28 U.S.C. § 1292(b).

Although neither of these routes provides for appeals as of right,

they do provide a safety valve for situations in which delaying

review by the court of appeals would be unjust or inappropriate.

In any event, we do not think it problematic to adopt a rule that

encourages, to the greatest extent possible, debtors and creditors

to negotiate a mutually agreeable plan without requiring appellate

intervention.   That such a harmonious outcome may be unlikely or

even impossible in some cases does not require adopting a different

rule.

          Bullard   suggests   that    requiring   him   to   propose   an

unwanted plan or dismiss his petition is especially unwarranted in

this case because his appeal presents a pure question of law that

is unsettled in this circuit.         However, that is precisely the


                                -10-
scenario envisioned for certification of a direct appeal under

§ 158(d)(2)(A)(i).6        We do not see how falling within a category

allowing   for    direct    appeal    of   an    interlocutory     order     under

§ 158(d)(2) is an argument in favor of finding that the order is

final under § 158(d)(1).        "Why certify such issues for appeal if

'final' in § 158(d)(1) covers them anyway? And why add § 158(d)(2)

to the Code in 2005 if § 158(d)(1) already did the work?"              Lindsey,

726 F.3d at 860; see also Mort Ranta, 721 F.3d at 258 (Faber, J.,

dissenting) ("[The debtor] seeks immediate resolution of what he

asserts is a novel legal issue.            Assuming the debtor is correct,

his   case's     legal   novelty     makes      it   a   prime   candidate    for

interlocutory review under 28 U.S.C. [§] 158(d)(2) or 28 U.S.C.

[§] 1292(b).     However, any novelty of this case's merits, and any

eagerness to have this Court reach them, should not bend the

judicially-crafted 'flexible finality' concept such that it renders

the multiple avenues for interlocutory appeals unnecessary.").

           Bullard cautions that not allowing immediate appeal of

the denial of confirmation will cause judicial inefficiency.7


      6
       Section 158(d)(2)(A) permits a lower court to certify a
direct appeal to the court of appeals if: (i) the challenged order
implicates a question of law as to which there is no controlling
authority, or "involves a matter of public importance"; (ii) the
challenged order "involves a question of law requiring resolution
of conflicting decisions"; or (iii) an immediate appeal "may
materially advance the progress of the case."
      7
       We note that concerns about inefficiency do not allow us to
take jurisdiction where Congress has not given it. See Gordon, 743
F.3d at 724 (rejecting argument that efficiency concerns allow

                                      -11-
Bullard cites Zahn v. Fink (In re Zahn), 367 B.R. 654 (B.A.P. 8th

Cir. 2007), as an example of a case in which a rule of non-finality

caused a "waste of judicial resources . . . [that] ought to give

this court pause." There, the bankruptcy court denied confirmation

of the debtor's original plan and the BAP dismissed her appeal as

interlocutory (she does not appear to have sought leave for an

interlocutory appeal under § 158(a)(3)).    Id. at 655.   The debtor

then filed, and objected to, an unwanted plan, which the bankruptcy

court confirmed.   Id. at 655–56.   On appeal, the BAP held that the

original plan did not become final upon confirmation of the

unwanted plan, and thus was not properly before the court, id. at

656, and that the debtor lacked standing to appeal the confirmation

of her own plan, even if unwanted, id. at 657.   The Eighth Circuit

disagreed on both counts, remanding the case back to the BAP for



court of appeals to review denial of confirmation because "this
court cannot take jurisdiction where none is to be had") (internal
quotation marks omitted). Bankruptcy cases may demand flexibility,
but, "as the Supreme Court has reminded us in construing § 158(d)
and § 1291 . . . , the key question is what the statute says about
jurisdiction, not what the area regulated by Congress may demand."
Lindsey, 726 F.3d at 860.      Congress, through § 158(d)(2) and
§ 1291, has already granted the courts of appeals flexibility to
hear interlocutory appeals from bankruptcy court orders in certain
circumstances; Federal Rule of Civil Procedure 54(b) allows
district courts to certify orders resolving particular claims or
entering judgment as to particular parties as "final" for
§ 158(d)(1) purposes; and courts, including this one, see Northwood
Props., 509 F.3d at 21; Perry, 391 F.3d at 285, have recognized
that orders resolving discrete disputes can be appealed even as the
larger proceeding continues.     See Lindsey, 726 F.3d at 860.
Bankruptcy's demand for flexibility is not unmet; "[t]here is in
short flexibility aplenty in this area." Id.

                               -12-
consideration of the unwanted and original plans. Zahn v. Fink (In

re Zahn), 526 F.3d 1140, 1142–44 (8th Cir. 2008).       On remand, the

BAP held that the bankruptcy court erred in not confirming the

original plan, vacated the confirmation of the unwanted plan, and

remanded to the bankruptcy court with instructions to confirm the

original plan.     Zahn v. Fink (In re Zahn), 391 B.R. 840, 847

(B.A.P.   8th   Cir.   2008).   While   this   series   of   events   was

undoubtedly inefficient, much of the inefficiency was attributable

to the debtor's failure to seek permissive interlocutory review in

the BAP or district court (or directly to the court of appeals)

when her original plan was rejected and the BAP's erroneous rulings

as to standing8 and the reviewability of the original plan after

confirmation of the unwanted plan.         Zahn   does not represent

inefficiency necessarily incident to a rule of non-finality.

           Any rule that routinely treats the denial of confirmation

as a final order would introduce its own form of inefficiency.

Bullard's proposal, with its presumption of finality, would clog

the appellate dockets with issues that could, and should, be

decided elsewhere.     "[T]here is something to be said in a day of


     8
       The majority in Mort Ranta was concerned that a rule
treating denial of confirmation as interlocutory could raise
standing problems if a debtor appealed confirmation of his own
unwanted plan. 721 F.3d at 248 n.10. As the dissent noted, this
concern was "unwarranted" since the debtor would still be "a person
aggrieved . . . because each previous denial of confirmation --
which I contend would be interlocutory -- merges with the plan's
final confirmation."    Id. at 263 n.11 (Faber, J., dissenting)
(internal quotation marks omitted).

                                 -13-
burgeoning appellate dockets for taking care not to construe

jurisdictional statutes . . . with great liberality. Otherwise, at

every stage of the bankruptcy proceedings the parties will run to

the court of appeals for higher advice." Maiorino v. Branford Sav.

Bank, 691 F.2d 89, 91 (2d Cir. 1982).                 Or, if we were to adopt a

less liberal rule requiring case-by-case, fact-intensive review,

the parties and the courts would be bogged down in extended

jurisdictional analyses before even approaching the merits.                            But

"[j]urisdictional rules ought to be simple and precise so that

judges and lawyers are spared having to litigate over not the

merits of a legal dispute but where and when those merits shall be

litigated."      In re Lopez, 116 F.3d 1191, 1194 (7th Cir. 1997); see

Lindsey, 726 F.3d at 859 ("[A] straightforward [finality] test also

has   the     virtue    of   being    easy    to   implement      and      resistant    to

time-consuming         and   costly    side     shows     about      the    meaning     of

jurisdictional requirements."); Mort Ranta, 721 F.3d at 258 n.6

(Faber, J., dissenting) ("[W]hether a court has jurisdiction [is]

an    issue     that    generally      should       not   be    fact-intensive          or

merits-based.").        The clear rule we adopt today -- an intermediate

appellate court's affirmance of a bankruptcy court's denial of

confirmation      of    a    reorganization        plan   is   not    a    final   order

appealable under § 158(d)(1) so long as the debtor remains free to

propose an amended plan -- promotes judicial efficiency and is




                                         -14-
faithful to the limitations that Congress has placed on our

jurisdiction.9

                         III.   Conclusion

          For the foregoing reasons, we dismiss this appeal for

lack of jurisdiction.   All parties shall bear their own costs on

appeal.

          So ordered.




     9
       The analysis may differ in certain circumstances where the
bankruptcy court confirmed a plan and the BAP or district court
reversed. In Northwood Properties, the creditors filed a motion
that, if granted, likely would have doomed the debtor's
reorganization. 509 F.3d at 18. The bankruptcy court denied the
motion and confirmed the plan. Id. On intermediate appeal, the
district court determined that the denial of the creditors' motion
was error and remanded the confirmation order for reconsideration
in light of its ruling. Id. On further appeal to this court, we
held that the bankruptcy court had correctly denied the creditors'
motion. Id. at 22–24. We also held that, because the district
court remanded the confirmation order based on its erroneous ruling
as to the creditors' motion, without considering the creditors'
objections to the plan, we had jurisdiction to review the
bankruptcy court's confirmation order -- which, of course, was a
final order. See id. at 24–25.
     We followed a similar path in Prudential Insurance Co. of
America v. SW Boston Hotel Venture, LLC (In re SW Boston Hotel
Venture, LLC), ___ F.3d ___, 2014 WL 1399418 (1st Cir. Apr. 11,
2014). There, the BAP reversed the bankruptcy court on a plan-
dispositive issue and, on that basis alone, without considering the
creditors' other objections to the plan, vacated and remanded the
confirmation order. Id. at *16. As in Northwood Properties, we
determined that the reversal was in error. See id. We also held
that we had jurisdiction over the BAP's remand order, even though
it contemplated significant further proceedings in the bankruptcy
court, because, among other reasons, our decision as to the first
issue eviscerated its entire premise and left only ministerial
tasks for the bankruptcy court. Id. at *16–17.

                                -15-
