                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2017


ROBERT D. MORT RANTA,

                Debtor - Appellant,

           v.

THOMAS PATRICK GORMAN,

                Trustee – Appellee.
------------------------------
NATIONAL ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:12-cv-00505-CMH-TCB; 11-18842-RGM)


Argued:   March 20, 2013                   Decided:   July 1, 2013


Before GREGORY and AGEE, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Vacated and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Judge Agee joined. Senior Judge
Faber wrote a dissenting opinion.


ARGUED: Daniel Mark Press, CHUNG & PRESS, PC, McLean, Virginia,
for Appellant.   Eva Choi, OFFICE OF THE CHAPTER 13 TRUSTEE,
Alexandria, Virginia, for Appellee.  ON BRIEF: Tara A. Twomey,
NATIONAL ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS, San Jose,
California, for Amicus Supporting Appellant.




                                 2
GREGORY, Circuit Judge:

     Robert     D.    Mort    Ranta   filed       a     voluntary    petition    for

bankruptcy under Chapter 13 of the Bankruptcy Code, 11 U.S.C.

§§ 1301-1330, seeking to adjust various secured and unsecured

debts.    The bankruptcy court denied confirmation of his proposed

Chapter   13   plan    on    the   grounds       that   it   did    not   accurately

reflect his disposable income and that it was unfeasible if Mort

Ranta’s Social Security income was excluded from his “projected

disposable income,” as Mort Ranta urged. 1                   The district court

affirmed.      We hold that the plain language of the Bankruptcy

Code excludes Social Security income from the calculation of

“projected disposable income,” but that such income nevertheless

must be considered in the evaluation of a plan’s feasibility.

For these reasons, we vacate and remand to the district court

with instructions to remand the case to the bankruptcy court for

further proceedings consistent with this opinion.



                                       I.

     At the time he filed the Chapter 13 petition, Mort Ranta

owed $20,000 in arrears on his home mortgage loan, $12,981 in

individual credit card debt, and $8,295 in joint credit card


     1
       Although the docket lists the appellant’s surname as
“Ranta,” his correct surname, according to his counsel, is “Mort
Ranta.” We therefore use “Mort Ranta” in the opinion.


                                             3
debt       with   his   wife.    On   Form    B22(C),        Mort   Ranta    reported   a

“current monthly income” of $3,097.46, a figure derived from the

couple’s combined average monthly income from employment over

the previous six months.

       On Form B6I (“Schedule I”), however, Mort Ranta reported

his “combined average monthly income” as $7,492.10.                          That figure

reflected         the   couple’s      current          monthly   take-home    pay    from

employment, plus an additional $3,319 in combined monthly Social

Security benefits.          His monthly expenses were reported on Form

B6J (“Schedule J”) as $6,967.24.                       Subtracting that figure from

his “combined average monthly income,” his “monthly net income”

per Schedule J was $524.86.

       Mort Ranta proposed a plan requiring payments of $525 per

month for five years, for a total of $31,500.                       From that amount,

the plan would pay off in full his mortgage arrears and joint

credit      card    debt.       However,     his       individual   credit    card   debt

would be paid off at less than one percent. 2

       The Trustee objected to the plan, claiming that it failed

to dedicate Mort Ranta’s full “projected disposable income” to

creditors          as    required       by      11        U.S.C.    § 1325(b)(1)(B). 3


       2
       Specifically, the plan would provide a distribution of
.0042 on the individual credit card debt.
       3
       As explained below, § 1325(b)(1) applies when the Trustee
or an unsecured creditor objects to a Chapter 13 plan. In that
case, the plan may not be approved unless it (A) fully pays the
(Continued)
                                                   4
Specifically, the Trustee contended that the expenses listed on

Schedule       J   were   overstated      and   that      Mort    Ranta’s    disposable

income therefore was higher than it appeared to be.

      In    a      hearing    before     the    bankruptcy        court,    Mort    Ranta

conceded that some of his expenses were overstated, but argued

that his plan nevertheless complied with § 1325(b)(1)(B) because

Social     Security       income   is    excluded      from      the    calculation      of

“disposable income.”            Thus, even after adjusting his expenses

downward, he argued that his disposable income would be negative

because his expenses would still exceed his non-Social Security

income.        As a result, Mort Ranta contended he was not required

to      make       any     payments       to      unsecured        creditors        under

§ 1325(b)(1)(B).

      In    a      colloquy    with     the    parties,     the     bankruptcy      court

determined that if Mort Ranta’s monthly payments were increased

to reflect his actual net income, including                            Social Security,

the     total      payments    under     the    plan      would    be     approximately

$50,000.       That   amount    would     allow     for    full    repayment       of   all

debts, including the individual credit card debt that would be

paid off at less than one percent under Mort Ranta’s proposed

plan.      Thus, the Trustee noted, the holder of that unsecured


unsecured claim or (B) dedicates all the debtor’s “projected
disposable income” during the commitment period to payments to
unsecured creditors. 11 U.S.C. § 1325(b)(1)(B).


                                                5
debt would either “get paid pretty much in full like everybody

else or [under Mort Ranta’s proposed plan] they get nothing.”

      The    bankruptcy      court      agreed         with    the     Trustee     that    Mort

Ranta “[could] afford something greater [than what he proposed

to pay] because there’s . . . income from Social Security.”                                 The

court     then    found    that       Mort    Ranta’s         plan    was    not   feasible,

explaining:

      If you don’t want to count Social Security for the
      purposes of the income then I think you have to go
      back to the rule of law of disposable income.        If
      you’re not going to add it to income you’re not going
      to have feasibility for the plan. It’s not feasible.

At    this    point,      Mort    Ranta        asked      the        court   to    grant    an

interlocutory appeal, and the court denied his request.                                     The

court subsequently issued a written order denying confirmation

of the plan and ordering the case dismissed in 21 days unless

Mort Ranta took one of the actions enumerated in Rule 3015-2 of

the   Local      Bankruptcy      Rules       for   the       United    States      Bankruptcy

Court of the Eastern District of Virginia. 4

      Mort Ranta appealed to the United States District Court for

the   Eastern     District       of    Virginia.        In    a   motion     for    leave   to

appeal, Mort Ranta noted that “the majority rule is that denial


      4
       The enumerated actions include filing a new modified
Chapter 13 plan, converting the case to another chapter of the
Bankruptcy Code, filing a motion for reconsideration, or
appealing the denial of confirmation.     Bankr. Ct. R. 3015-
2(H)(3).


                                                   6
of confirmation is interlocutory,” but preserved his position

that the denial should be considered a final order for purposes

of appeal.      The Trustee opposed the motion, arguing that the

appeal did not meet the criteria for interlocutory appeal under

28 U.S.C. § 158(a)(3).

     Without addressing the basis for its jurisdiction or the

motion    for   leave     to    file,     the     district       court    affirmed     the

bankruptcy court’s denial of confirmation in a written order.

The court reasoned:

           In this case, the Bankruptcy Court appropriately
     found that the Debtor could afford to pay an amount
     greater than that proposed in his Chapter 13 plan.
     Neither the Bankruptcy Code nor the Social Security
     Act prohibits a bankruptcy court from determining a
     debtor’s ability to repay his or her creditors, and in
     this case part of that consideration included Debtor’s
     supplemental   Social Security    retirement  benefits.
     Because Debtor voluntary[sic] chose not to include
     Social Security benefits for purposes of income in
     this particular case, the Bankruptcy Court found that
     Debtor’s proposed Chapter 13 Plan was not feasible.
     . . .    [T]hese findings of the Bankruptcy Court are
     neither erroneous nor contrary to law . . . .

Ranta v. Gorman, No. 1:12-CV-505 at 2 (E.D.V.A. August 6, 2012).

Mort Ranta timely appealed.

     On   appeal,    Mort       Ranta     asks       us    to   reverse   the   district

court’s    order    affirming           the   bankruptcy         court’s    denial     of

confirmation,      thereby       overruling          the    Trustee’s     objection    to

confirmation.        He        argues     first       that      the   Bankruptcy      Code

expressly excludes Social Security income from the calculation


                                                 7
of projected disposable income; and second, that his plan is

feasible based on his Social Security income.                       Before turning to

the merits of his appeal, first we must satisfy ourselves of our

appellate jurisdiction over the case.



                                          II.

     Mort Ranta asserts appellate jurisdiction under 28 U.S.C.

§ 158(d)(1), which grants the courts of appeal jurisdiction over

appeals    from     “all    final    decisions,            judgments,     orders,     and

decrees” entered by the district court sitting in review of the

bankruptcy       court. 5   Both    the    district         court    order   and     the

bankruptcy court order must be final for our jurisdiction to be

proper under § 158(d)(1).            See In re Computer Learning Ctrs.,

Inc., 407 F.3d 656, 660 (4th Cir. 2005).

     When a bankruptcy debtor’s proposed plan is confirmed, we

have generally allowed creditors and trustees whose objections

to the plan were overruled to appeal as a matter of right.                           See,

eg., In re Quigley, 673 F.3d 269, 270 (4th Cir. 2012) (trustee’s

appeal    from    district    court’s      affirmance         of    bankruptcy      court

order overruling in part trustee’s objection to proposed plan);

Neufeld    v.     Freeman,    794     F.2d          149,    150    (4th   Cir.      1986)



     5
       Mort Ranta does not claim to have complied with                               the
procedure for certifying a direct appeal under § 158(d)(2).


                                                8
(creditor’s         appeal    from        district         court’s     affirmance         of

bankruptcy court’s confirmation of proposed plan).

       By    the    same   token,    we   have       a    long    history    of   allowing

appeals        from    debtors      whose     proposed            plans     are        denied

confirmation, without questioning the finality of the underlying

order.        See, eg., In re Coleman, 426 F.3d 719, 722, 727 (4th

Cir.       2005)   (appeal   from    bankruptcy           court   order,     affirmed      by

district court, withdrawing confirmation of debtor’s plan and

granting debtor 30 days to file an amended plan); In re Witt,

113 F.3d 508, 509, 513 (4th Cir. 1997) (appeal from district

court order reversing bankruptcy court’s confirmation of plan

and remanding to allow debtor to propose amended plan); In re

Solomon,      67    F.3d   1128,    1130-31   (4th         Cir.    1995)    (appeal      from

bankruptcy         court   order,   affirmed         by    district    court,      denying

confirmation of plan); Caswell v. Lang, 757 F.2d 608, 608 (4th

Cir. 1985) (same); Deans v. O’Donnell, 692 F.2d 968, 968 (4th

Cir. 1982) (same). 6

       However,       as   described      below,         the   finality     of    an   order

denying confirmation of a proposed plan but not dismissing the


       6
       In tension with this practice, in an unpublished decision
we once dismissed an appeal similar to the one at bar for lack
of appellate jurisdiction.   See In re Massey, 21 F. App’x 113,
114 (4th Cir. 2001) (per curiam) (unpublished).    This decision
has minimal persuasive value, however, as it relied entirely on
out-of-circuit authority without providing any independent
reasoning. See id.


                                                 9
underlying     bankruptcy      petition       is    an     issue   that     has     divided

other circuits.           On one side, four circuits have held that such

orders are strictly interlocutory, while two other circuits have

held that they can be final for purposes of appeal.                              See infra

pp. 11-15.      Given this circuit split, and the fact that we have

not squarely addressed this issue before, we asked the parties

to   file     supplemental      briefs        addressing         the     basis    for   our

appellate     jurisdiction.           After    considering         the    principles     of

finality unique to bankruptcy cases and the decisions of other

circuits, we conclude that the bankruptcy court’s denial of Mort

Ranta’s proposed plan and the district court’s affirmance are

final orders        for    purposes    of     appeal,      and    that    our     appellate

jurisdiction is proper.

     As we have recognized on many occasions, the concept of

finality in bankruptcy traditionally has been applied in a “more

pragmatic     and    less    technical      way”     than    in    other     situations.

McDow v. Dudley, 662 F.3d 284, 287 (4th Cir. 2011) (quoting

Computer Learning Ctrs., 407 F.3d at 660).                        The reason for this

“relaxed rule of appealability” is that bankruptcy proceedings

are often protracted, involving multiple parties, claims, and

procedures, and postponing review of discrete portions of the

action until after a plan of reorganization is approved could

result   in    the    waste    of   valuable        time    and    scarce        resources.

McDow, 662 F.3d at 287 (quoting A.H. Robins Co. v. Piccinin, 788

                                               10
F.2d 994, 1009 (4th Cir. 1986)).              Thus, in bankruptcy cases, we

allow immediate appellate review of orders that “finally dispose

of   discrete    disputes    within    the    larger     case.”      Id.    at     287

(quoting Computer Learning Ctrs., 407 F.3d at 660). 7

      Applying     these     principles,          we   have   held    final       and

appealable a variety of orders that resolve a specific dispute

within the larger case without dismissing the entire action or

resolving all other issues.           See, eg., McDow, 662 F.3d at 286-90

(denial   of     trustee’s   motion     to    dismiss     bankruptcy       case    as

abusive); Comm. of Dalkon Shield Claimants v. A.H. Robins Co.,

Inc., 828 F.2d 239, 241 (4th Cir. 1987) (denial of request by

claimants for appointment of trustee); Piccinin, 788 F.2d at

1009 (order fixing venue).

      By contrast, we have held interlocutory bankruptcy court

orders that are provisional in nature and subject to revision,

and district court orders that remand the case to bankruptcy

court without consideration of the merits of the appeal.                          See,

eg., Computer Learning Ctrs., 407 F.3d at 661 (interim fee award

subject to reevaluation by bankruptcy court); In re Wallace &

      7
       We have applied the same relaxed and pragmatic approach to
finality whether the appeal is brought under 28 U.S.C. §§ 158 or
1291.   Compare McDow v. Dudley, 662 F.3d 284, 286-87 (4th Cir.
2011) (applying the more pragmatic and less technical approach
in an appeal brought under § 158), with Comm. of Dalkon Shield
Claimants v. A.H. Robins Co., Inc., 828 F.2d 239, 241 (4th Cir.
1987) (using the same approach in an appeal brought under
§ 1291).


                                             11
Gale Co., 72 F.3d 21, 23-24 (4th Cir. 1995) (district court

order remanding case to bankruptcy court with instructions to

certify an interlocutory appeal); In re Looney, 823 F.2d 788,

790-91       (4th     Cir.    1987)     (bankruptcy         court    order      continuing

automatic stay until hearing on the merits of creditor’s motion

for relief from stay).

       In contrast to the interlocutory orders in those cases,

here    the    bankruptcy       court      order    clearly    resolved         a   discrete

issue, indeed, the only issue, in Mort Ranta’s bankruptcy case—

that     is,        whether     his     proposed        Chapter      13    plan       merits

confirmation.         The bankruptcy court order denied confirmation of

the proposed plan and directed the case dismissed unless Mort

Ranta took further action, and the district court’s order simply

affirmed.       Nothing in either of the orders indicates that any

issues concerning the proposed plan remained for the bankruptcy

court’s consideration.

       The     argument       against      treating     a   denial    of     confirmation

final for purposes of appeal rests primarily on the fact that

the    debtor       may   propose     an    amended     plan   before      the      case   is

dismissed.          The Second Circuit first articulated this reasoning

in Maiorino v. Branford Sav. Bank, 691 F.2d 89 (2d Cir. 1982),

which    held        that     the     denial       of   a    Chapter       13       plan   is




                                                   12
interlocutory. 8          As the Maiorino court explained, “[s]o long as

the petition is not dismissed, it is open to the debtor to

propose     another       plan,    and        . . .    such    a     plan    might    well    be

acceptable to the parties or bankruptcy judge concerned.”                                    691

F.2d at 91 (citation omitted).                        Following the Second Circuit,

three     other       circuits         have     held     that      a     decision     denying

confirmation         of    a    proposed         plan     but      not      dismissing       the

underlying bankruptcy petition is an interlocutory order.                                    See

In re Lievsay, 118 F.3d 661, 662 (9th Cir. 1997) (per curiam);

Lewis v. United States, Farmers Home Admin., 992 F.2d 767, 773

(8th Cir. 1993); In re Simons, 908 F.2d 643, 645 (10th Cir.

1990) (per curiam).               According to the Tenth Circuit, “[t]his

approach        is   entirely     consistent”          with    two     general    principles

regarding finality:             (1) that an order is not final unless it

“ends     the    litigation       on    the     merits,       leaving       nothing   for    the

court to do but execute the judgment”; and (2) that a district

court order is not final if it “contemplates significant further

proceedings in the bankruptcy court.”                         Simons, 908 F.2d at 644-

45.

      8
       The jurisdictional statute at issue in that case was
former 28 U.S.C. § 1293(b), which was replaced by 28 U.S.C.
§ 158(d) when Congress enacted the Bankruptcy Amendments and
Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333.
“Because both statutes contain the finality requirement, courts
have applied the cases brought under section 1293(b) to section
158(d) cases.”   In re Brown, 803 F.2d 120, 122 n.3 (3d Cir.
1986).


                                                  13
       We are not persuaded that a denial of confirmation should

be considered an interlocutory order simply because the debtor

could propose an amended plan.               That conclusion appears to be

grounded upon standard finality principles, as demonstrated by

the Tenth Circuit’s observations in Simons, rather than the more

flexible     approach      to     finality        traditionally        applied    in

bankruptcy proceedings.          Indeed, Maiorino, the seminal decision

upon which nearly all other courts have relied, made no mention

of a flexible approach, and instead opined that “[f]rom a policy

point of view . . . there is something to be said in a day of

burgeoning appellate dockets for taking care not to construe

jurisdictional statutes . . . with great liberality.”                      691 F.2d

at   91.     Although    some    courts    have    paid   lip    service    to   the

flexible approach even as they have held denials of confirmation

interlocutory, see, eg., In re Flor, 79 F.3d 281, 283 (2d Cir.

1996) (per curiam); Lewis, 992 F.2d at 772, they have generally

used   the   same     reasoning     as    Maiorino--that        such   orders    are

interlocutory    because        additional    proceedings        are   available--

which is consonant with a more rigid approach, see In re Bartee,

212 F.3d 277, 282 n.6 (5th Cir. 2000) (observing that the Second

and Tenth Circuits have “favor[ed] a rigid rule of finality” in

holding that denials of confirmation are interlocutory).

       Moreover, we find questionable the logic that denials of

confirmation    are     interlocutory      simply    because     the    debtor   may

                                             14
propose      an     amended    plan,     for    the      same     can    be    said       of    a

confirmation order.            Even after a plan is confirmed, the debtor

is always free to propose a modification to the plan, which

could substantially modify the terms of repayment and the rights

of    creditors.        See    11    U.S.C.    § 1329(a).          (Indeed,         even       the

Trustee and the creditors may propose a modification.                              Id.)

       We    therefore       agree   with     the    more    pragmatic         approach         of

those circuits that have held that a denial of confirmation can

be a final order for purposes of appeal even if the case has not

yet been dismissed, recognizing that this conclusion “is all but

compelled by considerations of practicality.”                           Bartee, 212 F.3d

at 283; see also In re Armstrong World Indus., Inc., 432 F.3d

507, 511 (3d Cir. 2005) (holding that a denial of confirmation

was    a    final    order    for    purposes       of   appeal,    in     part,      due       to

“practical          considerations       in       the      interests          of     judicial

economy”). 9

       As the Fifth Circuit explained in Bartee, a contrary rule

could       leave     some     debtors      “without        any     real       options          in

formulating         [their]    plan.”       212     F.3d    at    283.         Assuming         an

       9
       While we find the decisions of these circuits persuasive,
contrary to the dissent’s assertions, we do not adopt any of the
methodology they use to evaluate finality in bankruptcy (such as
multi-factor    tests),    which  the   dissent    considers   too
“indeterminate.”    See infra pp. 42 n.6, 43-44, 51-52.    Rather,
our   decision   is    based   on the   principles   of   finality
traditionally applied by our Circuit in bankruptcy cases.      See
supra pp. 9-10.


                                                15
interlocutory appeal is unavailable, the debtor who prefers the

proposed plan and seeks to appeal the denial would be forced to

“choose between filing an unwanted or involuntary plan and then

appealing        his   own    plan,       or     dismissing          his    case   and     then

appealing his own dismissal.”                    Id.     Forced to suffer dismissal,

the    debtor     could     lose    the    automatic          stay   on     foreclosure    and

collection        actions    that    takes       effect       upon    the    filing   of   the

Chapter 13 petition, see 11 U.S.C. § 362, and could be precluded

from filing another bankruptcy petition for six months, see id.

§ 109(g).         Forced to propose an unwanted plan, the debtor would

waste “valuable time and scarce resources,” McDow, 662 F.3d at

287,    on   a    plan    proposed        only    for        the   purpose    of   obtaining

appellate review of the earlier order. 10                          Thus, as a practical

matter,      it    makes     little       sense         to    deny     debtors     immediate




       10
        In addition, the procedural oddity of allowing a debtor
to appeal the confirmation of his or her own proposed plan
raises questions regarding standing. To have standing to appeal
a bankruptcy order, the appellant must be a “person aggrieved”
by the order, that is, a person “directly and adversely affected
pecuniarily.”   In re Urban Broad. Corp., 401 F.3d 236, 243-44
(4th Cir. 2005).    Although the Eighth Circuit has held that a
debtor forced to propose an amended plan has standing to appeal
as a “person aggrieved” by the confirmation order, see In re
Zahn, 526 F.3d 1140, 1142 (8th Cir. 2008) (reversing the
contrary ruling of the Bankruptcy Appellate Panel), we have not
yet addressed this issue.


                                                   16
appellate       review    simply       because      the     case    has    not     yet      been

dismissed and the debtor could propose an amended plan. 11

     In    arguing       that     the    denial       of    confirmation          should     be

considered interlocutory, the dissent contends that a “discrete

dispute”       should    be    limited,       for     purposes      of    evaluating        the

finality       of   a    bankruptcy       order,       to    “situations          where     one

creditor’s       rights       become     fixed      while        other    issues       in   the

bankruptcy case remain unresolved.”                     Infra p. 40.            However, our

Circuit has never articulated such a strict rule.                               Instead, as

described above, we have held final a variety of orders that

resolved a discrete dispute without fixing the rights of any one

creditor.       See infra p. 10 (collecting cases).

     The       dissent    also    contends       that      our    decision       “needlessly

expands     appellate          jurisdiction”          in    bankruptcy,          encouraging

“start-and-stop”         appeals       from    debtors      whose       plans    are    denied

confirmation,           discouraging          negotiation          and     mediation         in

reorganization cases, and hampering the very aim of judicial

economy    guiding       our    decision.           Infra    p.    54.      We     disagree.

First,    as    described       above,    our    Court      has     a    long    history      of

     11
        The dissent argues that our reasoning “assumes too much
of the debtor’s intent.”   Infra p. 53.   However, it is reason,
not assumption, which leads us to conclude that the initial plan
proposed by the debtor is the debtor’s preferred plan--
especially given that the Bankruptcy Code requires Chapter 13
debtors to propose their plans in good faith, see 11 U.S.C.
§ 1325(a)(3)--and therefore that some debtors will disagree with
the denial of confirmation and want to appeal the decision.


                                                 17
allowing appeals from debtors whose proposed plans are denied

confirmation.        Infra p. 8.     Our holding today does not extend

our appellate jurisdiction but instead justifies its existing

parameters. 12

     Moreover, we see no reason to assume that debtors faced

with a denial of confirmation will waste their resources on a

gratuitous    appeal       simply   because     the    option   to    appeal   is

available, when an amended plan would provide all the relief

needed.      Thus,    to   the   extent   the   dissent    suggests    that    our

decision will encourage an onslaught of senseless “start-and-

stop appeals,” undermining judicial economy, see infra p. 54, we

disagree.     Indeed, the alternative adopted by the courts upon

which the dissent relies, that is, allowing debtors to appeal

the denial of confirmation after an amended plan is confirmed,

see, eg., In re Zahn, 526 F.3d 1140, 1143-44 (8th Cir. 2008), is

hardly less economical, for it simply delays the inevitable in

cases where the amended plan is unacceptable to the debtor.

     Finally, we do not think it necessary to treat denials of

confirmation as interlocutory in order to encourage negotiation

and mediation in reorganization cases.                As noted by the dissent

     12
       We do not rely, as the dissent suggests, infra pp. 45-46,
on any sub silentio holdings in the cases cited infra page 8.
Rather, we cite these cases to show that our Circuit has a
history of hearing appeals from denials of confirmation, even if
we have not yet squarely addressed the basis for our
jurisdiction.


                                          18
in Maiorino, the effect of such a rule is that “when creditors

lose and a plan is confirmed, creditors may appeal immediately

as of right,” but “when debtors lose and a plan is rejected,

they may appeal only by leave of the [reviewing] court,”                                          691

F.2d    at       95    (Lumbard,      J.,   dissenting).            Given       that   “Congress

enacted Chapter 13 to aid consumer debtors,” id., whatever the

value of negotiation and mediation in Chapter 13 cases, that

value is best fostered by an even playing field that affords

debtors the same access to relief on appeal as creditors when a

decision         regarding       the       proposed        plan    is     adverse      to    their

interests. 13

       In    sum,          because    it    is   evident          from    the    face       of    the

underlying            orders   that    confirmation          of    Mort    Ranta’s      proposed

plan was finally denied, it would make little sense to force

Mort    Ranta         to    suffer    dismissal       or    to    waste    resources         on    an

amended plan before obtaining appellate review.                                   Such a rule

would       be        inconsistent      with     the       pragmatic,       less       technical

approach to finality we apply in bankruptcy proceedings.                                           We

       13
        The dissent also argues that our decision “effectively
reads out” the avenues for interlocutory relief afforded by the
certification provisions of 28 U.S.C. §§ 158(d)(2) and 1291(b).
Infra p. 54. This is not so. Those provisions remain available
to authorize direct appeals from any number of bankruptcy court
rulings on novel or disputed legal issues, or other issues of
importance, without regard to the finality of the underlying
order. We simply hold, regardless of whether this case presents
such an issue, that the denial of confirmation is appealable as
a final order.


                                                   19
therefore         conclude    that     the        bankruptcy      court’s    denial       of

confirmation        and   the    district         court’s      affirmance     are       final

orders      for    purposes     of     appeal       under      § 158(d)(1),       and    our

appellate jurisdiction is proper. 14



                                             III.

       Turning to the merits of the appeal, Mort Ranta argues that

the bankruptcy court erred in denying confirmation of his plan

because the Bankruptcy Code excludes Social Security income from

the calculation of “projected disposable income,” and because

his    plan   is    feasible     based       on   consideration       of   that     income.

When reviewing a decision by a district court sitting in its

capacity as a bankruptcy appellate court, we review the factual

findings of the bankruptcy court for clear error and the legal

conclusions de novo.             In re Kirkland, 600 F.3d 310, 314 (4th

Cir.    2010).      Because     this    appeal         presents   only     questions      of

statutory     interpretation           and    the      facts    are   undisputed,        our

review is de novo.            In re White, 487 F.3d 199, 204 (4th Cir.

2007).

       14
        During the pendency of this appeal, the bankruptcy court
conditionally confirmed Mort Ranta’s proposed plan pending the
outcome of his appeal to allow the Trustee to disburse to
creditors funds Mort Ranta had paid to the Trustee. Mort Ranta
argues that the conditional confirmation order cures any defect
in the finality of the denial of confirmation. Because we hold
that the denial of confirmation is final and appealable, we do
not reach this argument.


                                                  20
                                                  A.

       Chapter         13    of     the    Bankruptcy        Code      allows    debtors      with

regular income to repay or discharge certain debts after making

payments          to     creditors         for    a     specified       commitment      period,

generally three to five years.                        See 11 U.S.C. §§ 1301-1330.               To

obtain relief, the debtor must propose a debt adjustment plan

that meets all the requirements for confirmation set forth in

the Code.          See id. §§ 1322, 1325.                Relevant here, if the Trustee

or an unsecured creditor objects to confirmation of the plan,

the plan must either fully pay the unsecured claim or provide

that    all       the       debtor’s       “projected        disposable       income”    to    be

received during the applicable commitment period will be applied

to   make        payments      to    unsecured         creditors.         Id.    § 1325(b)(1).

Prior to 2005, the Code defined disposable income as “income

which       is     received         by    the     debtor”       less    amounts     reasonably

necessary for the maintenance or support of the debtor, certain

charitable         contributions,           and       certain    business       expenses.       11

U.S.C. § 1325(b)(2) (2000).                       Based on this definition, “courts

typically included Social Security benefits in the calculation

of disposable income.”                    Baud v. Carroll, 634 F.3d 327, 347 (6th

Cir. 2011) (collecting cases).

       In        2005,      however,       Congress         amended     the     definition     of

“disposable income” with the enactment of the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub.L.

                                                       21
No. 109–8, 119 Stat. 23 (2005). The Code now defines “disposable

income” as “current monthly income received by the debtor” less

“amounts        reasonably          necessary           to    be      expended”        for   the

maintenance          or    support        of    the        debtor,     certain     charitable

contributions,             and     certain        business          expenses.      11     U.S.C.

§ 1325(b)(2).             “[C]urrent        monthly        income”     means     the     debtor’s

average monthly income from all sources during the previous six

months, excluding, among other things, “benefits received under

the   Social      Security          Act.”         Id.      § 101(10A).           Thus,    Social

Security        income       is     now     excluded         from     the      definition     of

“disposable income.”               In addition, the Code now requires above-

median    income          debtors    to     use      the     “means    test”--a        statutory

formula for determining whether a presumption of abuse arises in

Chapter     7     cases--when          calculating            the     “amounts     reasonably

necessary       to    be     expended”         for    the     debtor’s       maintenance      or

support.        See id. §§ 1325(b)(3), 707(b)(2).                          As a result, only

certain    specified             expenses      are    included        in   the   above-median

income debtor’s “amounts reasonably necessary” for maintenance

or support.          Id.     For below-median income debtors, however, the

full amount reasonably necessary for maintenance and support is

included.       See § 1325(b)(2)(A)(i).

      Although the Bankruptcy Code defines the term “disposable

income,” it does not specifically define “projected disposable

income.”        However, in Hamilton v. Lanning, the Supreme Court

                                                     22
explained     that       “projected       disposable       income”         should    be

calculated       based   on    “disposable      income,”      using    a    “forward-

looking approach.”            130 S. Ct. 2464, 2469 (2010).                First, the

debtor’s “disposable income” should be multiplied by the number

of months in the debtor’s plan, and in most cases the result

will be determinative.           Lanning, 130 S. Ct. at 2471.                 However,

“in exceptional cases, where significant changes in a debtor’s

financial    circumstances        are   known     or   virtually      certain,      the

bankruptcy       court    has     discretion      to    make     an        appropriate

adjustment.”       Id.; see also In re Quigley, 673 F.3d 269, 273-74

(4th Cir. 2012) (noting that under Lanning, bankruptcy courts

may   account      for    foreseeable       changes     in     both     income      and

expenses).

      Following Lanning, a debtor’s “projected disposable income”

is based on the debtor’s “disposable income,” give or take any

adjustments necessary to account for foreseeable changes in that

income.      Because the Code expressly excludes Social Security

income    from    “current      monthly   income,”      and    thus,       “disposable

income,” it follows that Social Security income must also be

excluded    from    “projected      disposable      income.”          Indeed,    every

other circuit to address this issue has arrived at the same

conclusion.       See In re Welsh, 711 F.3d 1120, 1127 n.28, 1130-31

(9th Cir. 2013) (noting that the statute clearly excludes Social

Security income); In re Ragos, 700 F.3d 220, 223 (5th Cir. 2012)

                                             23
(same); In re Cranmer, 697 F.3d 1314, 1317-18 (10th Cir. 2012)

(same); Baud, 634 F.3d at 345 (same).

       The    Trustee’s        arguments    to       the    contrary             are      neither

persuasive nor consistent with the plain language of the Code.

The     Trustee    first       claims    that        the    revised         definition         of

“disposable income” applies only to above-median income debtors,

not to below-median income debtors, like Mort Ranta.                                      But the

Code provides a single definition of “disposable income,” and

that    definition      uses    “current    monthly         income”         as       a    starting

point    without       differentiating         between          debtors         of       different

income levels.         11 U.S.C. § 1325(b)(2).              Although the Code goes

on to distinguish between above-median income and below-median

income       debtors    for     purposes       of     calculating               the      “amounts

reasonably necessary” for the debtor’s maintenance or support,

id. § 1325(b)(3), there is no distinction on the income side.

       Next, the Trustee argues that the Supreme Court’s decision

in    Lanning     allows   Social       Security      income         to    be    included      in

“projected       disposable      income”    even       if       it    is    excluded         from

“disposable income.”            In Lanning, however, the Court held only

that foreseeable changes in the debtor’s financial circumstances

may be taken into account when calculating “projected disposable

income,” not that the basic formula for “disposable income” may

be    ignored.      See    Cranmer,      697    F.3d       at    1318      (“[N]othing         in

Lanning suggests a court may disregard the Code’s definition of

                                                24
disposable income in calculating projected disposable income.”);

Baud, 634 F.3d at 345 (“[T]he discretion Lanning affords . . .

does not permit the court to alter the items to be included in

and excluded from income.”).                  We do not consider Lanning to

authorize    the    bankruptcy       court    to    read     out     of    the    Code   the

BAPCPA’s    revisions       to    the   definition      of    “disposable          income.”

“If   Congress     excluded        social     security       income        from     current

monthly income and disposable income, it makes little sense to

circumvent that prohibition by allowing social security income

to be included in projected disposable income.”                       Ragos, 700 F.3d

at 223.

      The Trustee also argues that Social Security income must be

included in the calculation of a below-median income debtor’s

“disposable income” because Schedule I contains a line for its

inclusion.       The Trustee contends that Schedule I is used with

Schedule J to calculate the disposable income of below-median

income debtors.        The language of the forms, however, does not

support the Trustee’s contention.                   Schedule I states that it

calculates       “average        monthly     income,”      not     “current         monthly

income.”         And   Schedule         J,   which      references          Schedule     I,

calculates “monthly net income,” not “disposable income.”                                The

bankruptcy court may not “disregard the Code’s definition of

disposable    income    . . .       simply    because        there    is    a     disparity

between    the    amount    calculated       using    that       definition        and   the

                                               25
debtor’s actual available income as set forth on Schedule I.”

Baud, 634 F.3d at 345.

       Given the Trustee’s confusion over this issue, we emphasize

that,    for       all    debtors,     the    starting        point    for    calculating

projected      disposable       income       is   the    debtor’s      “current      monthly

income,” which is provided by Form B22(C).                             For above-median

income debtors, Parts IV and V of Form B22(C) allow the debtor

to     calculate         “disposable    income”         by    deducting      the     limited

expenses allowed under the means test from the debtor’s “current

monthly       income.”        For    below-median         income      debtors,      however,

“disposable income” should be calculated by subtracting the full

amount “reasonably necessary to be expended” for the debtor’s

support       or    maintenance,        based      on     information        provided     in

Schedule J, from the “current monthly income” figure.                              Using the

“disposable income” figure, “projected disposable income” should

then     be     calculated          consistent         with    the     Supreme       Court’s

instructions in Lanning.

       Finally, the Trustee argues that failing to require below-

median income debtors to include Social Security income in their

“projected disposable income” would contravene Congress’ intent

to eradicate bankruptcy abuse when it enacted the BAPCPA.                                See

Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 721 (2011)

(“Congress enacted the [BAPCPA] to correct perceived abuses of

the    bankruptcy         system.      In    particular,       Congress      adopted     the

                                                  26
means     test   . . .       to     help    ensure       that       debtors     who     can     pay

creditors do pay them.”) (internal quotation marks and citations

omitted).        For    instance,          the   Trustee           argues    that     if   Social

Security income is not included, then debtors will have total

discretion       to    dictate       the     amount       of        income     they     want     to

contribute to the plan.               But this is not necessarily so.                       It is

true that a Chapter 13 debtor with zero or negative “projected

disposable       income”      is     not    required          to    apply     any     income    to

payments    to    unsecured         creditors       under          § 1325(b)(1)(B).             The

debtor’s     plan,          however,       still        must        satisfy     every       other

requirement for confirmation set forth in the Code.                                 Among other

requirements,         the    plan    must    meet       the    “best        interests      of   the

creditors” test, i.e., unsecured creditors must not receive less

than they would in a Chapter 7 liquidation of the estate, 11

U.S.C. § 1325(a)(4), and the plan must have been proposed in

good faith, id. § 1325(a)(3). 15




     15
        We note, however, that the exclusion of Social Security
income from disposable income, as required by statute, by
itself, does not constitute bad faith.     See In re Ragos, 700
F.3d 220, 227 (5th Cir. 2012) (“[R]etention of exempt social
security benefits alone is legally insufficient to support a
finding of bad faith under the Bankruptcy Code); In re Cranmer,
697 F.3d 1314, 1319 (10th Cir. 2012) (“When a Chapter 13 debtor
calculates his repayment plan payments exactly as the Bankruptcy
Code and the Social Security Act allow him to, and thereby
excludes SSI, that exclusion cannot constitute a lack of good
faith.”).


                                                   27
       More fundamentally, the concerns over abuse raised by the

Trustee are best addressed to Congress, not to this Court.                     The

function of the judiciary is to apply the law, not to rewrite it

to conform with the policy positions of litigants.                      When the

statutory language is clear, as it is in this case, our inquiry

must end.     See In re Sunterra Corp., 361 F.3d 257, 265 (4th Cir.

2004) (“As a settled principle, unless there is some ambiguity

in the language of a statute, a court’s analysis must end with

the    statute’s        plain   language.”         (internal   quotation    marks,

citations, and alteration omitted)). 16

       In   sum,   we    hold   that,   for   both     above-median   income   and

below-median income debtors, Social Security income is excluded

from    the   calculation       of   “projected      disposable   income”   under

§ 1325(b)(2).

                                         B.

       We next address whether the district court erred when it

disregarded Mort Ranta’s Social Security income for purposes of

evaluating whether his plan was feasible.                      The “feasibility”

requirement is expressed in § 1325(a)(6), which states that the



       16
        Because we hold that the Bankruptcy Code expressly
excludes Social Security income from the calculation of
“projected disposable income,” we do not reach Mort Ranta’s
alternative argument that the Social Security Act protects
Social Security income from the operation of Chapter 13
proceedings. See 42 U.S.C. § 407.


                                              28
plan shall be confirmed if “the debtor will be able to make all

payments under the plan and to comply with the plan.”

       The   bankruptcy         court    reasoned      that     if   Social   Security

income is excluded from “disposable income,” then it must also

be excluded when evaluating whether the plan is feasible.                            But

nothing       in          the      Code       supports           this      conclusion.

Section 1325(a)(6) simply states that a debtor must be able to

make the payments required by the plan; it does not state that

only “disposable income” may be used to make payments.                        Further,

it has long been established that Social Security income may be

used   to    fund    a    Chapter       13   plan.        See   11   U.S.C.   § 109(e)

(allowing individuals with “regular income” to be debtors under

Chapter 13); United States v. Devall, 704 F.2d 1513, 1516 (11th

Cir. 1983) (explaining that originally only “wage earners” could

file under Chapter 13, and that in 1978 Congress amended the

Code to extend relief to individuals with “regular income,” in

part, to benefit Social Security recipients) (citing S.R. No.

95–989, at 13 (1978), 1978 U.S.C.C.A.N. 5799; H.R. No. 95–595,

(1977), 1978 U.S.C.C.A.N. 5963, 6080); see also Hon. W. Homer

Drake,    Hon.     Paul    W.   Bonapfel      &    Adam   M.    Goodman,   Chapter   13

Practice and Procedure § 3:7 (2012) (noting that “permissible

sources      of     regular      income      include      . . .      social   security

benefits”). According to the bankruptcy court’s interpretation

of the Code, however, it is unlikely that a debtor whose primary

                                                  29
source    of     income    is     Social    Security      could    ever      propose    a

confirmable      plan,     for    the    debtor      would   be    unable     to     prove

feasibility.       There is no indication Congress intended to throw

this kind of obstacle to relief in the way of Social Security

recipients       when     it     revised     the     definition      of      “projected

disposable income” with the BAPCPA.

     We therefore hold, in agreement with the Sixth Circuit,

that “a debtor with zero or negative projected disposable income

may propose a confirmable plan by making available income that

falls outside of the definition of disposable income—such as

. . . benefits under the Social Security Act—to make payments

under the plan.”           Baud, 634 F.3d at 352 n.19; see also In re

Kibbe,    361    B.R.     302,    314    n.11   (B.A.P.      1st   Cir.      2007)    (per

curiam)    (noting        that    the      revised     definition       of    projected

disposable income “does not preclude a debtor’s use of available

monies    excluded        from    the    definition      . . .     to     support     the

feasibility of the debtor’s plan).                   Thus, in evaluating whether

a debtor will be able to make all payments under the plan and

comply    with    the     plan,    the     bankruptcy     court    must      take    into

account any Social Security income the debtor proposes to rely

upon, and may not limit its feasibility analysis by considering

only the debtor’s “disposable income.” If the debtor’s actual

net income, including Social Security income, is sufficient to

cover all the required payments, the plan is feasible.

                                                30
      In arguing otherwise, the Trustee cites a single bankruptcy

court     case     from     another    circuit,          which      we     do    not     find

persuasive.        See In re Schanuth, 342 B.R. 601, 605 (Bankr. W.D.

Mo. 2006) (holding that a debtor’s plan was not feasible because

the     monthly        payments    exceeded       “disposable        income”).           The

Schanuth court relied exclusively on bankruptcy cases predating

the BAPCPA, without taking into account how the BAPCPA’s revised

definition        of     “disposable       income”       affects     the        feasibility

analysis.       See id. n.11 (collecting cases).                   Although before the

BAPCPA,    it     would    make    sense    to    find    a   plan       unfeasible      when

“disposable income” exceeded the payments required by the plan,

that is no longer the case.

      For these reasons, we hold that when a Chapter 13 debtor

proposes    to     use    Social    Security      income      to    fund    a    plan,    the

bankruptcy court must consider that income in evaluating the

plan’s feasibility under § 1325(a)(6).



                                            IV.

        Given    that     circumstances       may     have       changed        during    the

pendency of this appeal, we do not decide whether Mort Ranta’s

plan should be confirmed, but instead remand the case to allow

the bankruptcy court to reconsider the plan in light of our

holdings. Accordingly, we vacate the order of the district court

and remand the case to the district court with instructions to

                                                 31
remand   to   the   bankruptcy   court   for   further   proceedings

consistent with this opinion.

                                               VACATED AND REMANDED




                                   32
FABER, Senior District Judge, dissenting:

       I respectfully dissent from the majority's conclusion that

the bankruptcy court's denial of confirmation of the debtor's

Chapter 13 plan was a final order and, accordingly, believe that

appellate jurisdiction is not proper in this case.                          The nature

of     appellate       jurisdiction      in     bankruptcy,     the      effects      of

“flexible finality” on the same, and the weight of precedent

from other circuit courts of appeals all compel my dissenting

opinion.



                                           I.

       While     federal   district      courts    have   original      jurisdiction

over    all    cases     under   the    Bankruptcy     Code,    see    28    U.S.C.    §

1334(a)-(b), they also have appellate jurisdiction over, among

other    matters,        bankruptcy      court     orders,     whether      final     or

interlocutory.         See 28 U.S.C. § 158(a)(1), (3).                Circuit courts

of     appeals     also     have       appellate     jurisdiction        over    final

bankruptcy       court    orders   as    an     additional   layer     of    appellate

review beyond the district court’s own appellate review.                        See 28

U.S.C. § 158(d)(1)(stating that circuit courts of appeals have

appellate jurisdiction over all final orders of a district court
where that district court heard bankruptcy appeals pursuant to

28 U.S.C. § 158(a)). 1

     Separately, circuit courts of appeals have direct appellate

jurisdiction     in   bankruptcy,   conditioned     upon    certification     by

the lower court involved in the bankruptcy proceeding.                  See 28

U.S.C. § 158(d)(2)(A).       This type of direct appeal in bankruptcy

requires certification from a lower court that the bankruptcy

order    being   appealed   involves    (1)   a   legal    question   where   no

circuit court of appeals or Supreme Court decision controls, (2)

a matter of public importance, (3) a legal question requiring

resolution of conflicting decisions, or (4) a situation where an

interlocutory appeal might "materially advance the progress of"

the bankruptcy case or proceeding below. 2            See id.     Notably, an


     1
       In Connecticut National Bank v. Germain, the Supreme Court
noted that 28 U.S.C. §§ 158(d)(1) and 1291 “do not pose an
either-or   proposition”   regarding  the   courts  of   appeals’
appellate jurisdiction over final orders in bankruptcy.       See
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992).
Accordingly, the statutes overlap to an extent, granting
appellate jurisdiction over final orders in bankruptcy to
circuit courts of appeals through two points of authority.
     2
        28 U.S.C. § 158(d)(2) essentially grants appellate
jurisdiction over interlocutory orders in bankruptcy to circuit
courts of appeals.     The Supreme Court has specifically held,
however, that 28 U.S.C. § 158(d)(2) does not, by negative
implication,    limit  circuit  courts  of  appeals'   appellate
jurisdiction over interlocutory appeals pursuant to 28 U.S.C. §
1292(b).    Connecticut Nat. Bank v. Germain, 503 U.S. at 253.
Accordingly, these statutes overlap in a manner similar to 28
U.S.C. §§ 158(d)(1) and 1291. Additionally, while 28 U.S.C. §§
158(d)(2) and 1292(b) differ in ways largely irrelevant here,
(Continued)
                                       34
appeal under 28 U.S.C. § 158(d)(2), as opposed to an appeal

under 28 U.S.C. § 158(d)(1), does not stay any proceeding in the

lower court from which the appeal is taken.                             See 28 U.S.C. §

158(d)(2)(D).         Instead, a lower court may, though it need not,

affirmatively        issue       a    stay     when     a   circuit    court     of    appeals

receives an appeal under Section 158(d)(2).                        See id.

      As    the    majority          rightly      notes,    the    debtor   in    this    case

"does      not    claim     to       have    complied       with      the   procedure        for

certifying a direct appeal" under 28 U.S.C. 158(d)(2).                                Supra p.

7   n.5.         However,    the       record      clearly    shows     that     the    debtor

attempted to comply with one or another procedure for obtaining

interlocutory review, but either failed to comply fully or was

denied such review.              For example, at the confirmation hearing,

the debtor asked the bankruptcy court to grant an interlocutory

appeal.      The bankruptcy court denied the debtor's request.                               The

record also shows that the debtor, in his motion for leave to

appeal to the district court, acknowledged that more circuit

courts      of     appeals       than       not    have     held    that    a    denial       of

confirmation of a Chapter 13 plan is interlocutory.                              On the one

hand, the district judge below, in his written order affirming

the   bankruptcy       court’s         denial      of   confirmation,       chose      not    to



the two statutes are significantly similar in one regard—both
contain procedural requisites for taking an interlocutory
appeal.


                                                  35
address     the        basis      for       the        district         court's      appellate

jurisdiction.           By the same token, the district judge did not

opine     that        any     issue        in     the        debtor’s       appeal       merited

interlocutory         review.          Just       as     the       opportunity      to     pursue

interlocutory review by the district court under 28 U.S.C. §

158(a)(3)       was     quashed       at    the        bankruptcy       court      level,    the

opportunity to pursue interlocutory review by this Court was

lost at both the bankruptcy and district court levels, although

not for the debtor’s lack of attempting to pursue interlocutory

review.

     As    an    alternative,         the       debtor       now    seeks    to    re-cast     an

interlocutory         appeal    as    an    appeal          from    a   final     order.      The

majority complied, citing the “flexible finality” concept unique

to bankruptcy while simultaneously ignoring the significance of

procedural requirements for taking an interlocutory appeal in

bankruptcy.



                                                II.

                                                A.

     Nearly       all       circuit     courts         of    appeals      agree     that     "the

concept of 'finality' is more flexible in the bankruptcy context

than in ordinary civil litigation."                          In re Flor, 79 F.3d 281,

283 (2d Cir. 1996)(holding a denial of confirmation of a Chapter

11 plan is interlocutory and reasoning that the Second Circuit's

                                                36
holding in Maiorino v. Bradford Savings Bank, a Chapter 13 case,

"applies        with        comparable     force"       in        the        Chapter    11

context)(citing Maiorino v. Branford Sav. Bank, 691 F.2d 89, 91

(2d Cir. 1982)); see also In re Rudler, 576 F.3d 37, 43 (1st

Cir.       2009)(noting      that     finality   is   given        a    more     flexible

interpretation         in     bankruptcy    relative         to    other       contexts).

However, the Tenth Circuit Court of Appeals has specifically

held that it does not apply a flexible finality standard in

bankruptcy.        In       re   Simons,   908   F.2d    643,          644    (10th    Cir.

1990)(noting that finality for purposes of 28 U.S.C. § 158 is

interpreted in traditional, not flexible, terms).                        Nevertheless,

flexible finality is not a novel concept in bankruptcy, and the

purposes underlying its application persist over time.

       The First Circuit Court of Appeals distilled the “flexible

finality” concept in In re Saco Development Corporation after

recognizing that application of traditional finality principles

in bankruptcy would lead to “nearly insuperable obstacles to a

finding of finality.” 3             16 Charles Alan Wright, Arthur R. Miller



       3
       The majority apparently contends that Maiorino, because it
did not distill flexible finality as Saco did only one year
later, was blind to the need for such a concept in bankruptcy.
In other words, the majority implies that Maiorino’s holding—
denial of confirmation of a Chapter 13 plan is interlocutory—was
derived purely from traditional finality principles.    See supra
p. 13. Saco’s tracing of the history of finality in bankruptcy
refutes this as does the Second Circuit Court of Appeals’
(Continued)
                                           37
& Edward H. Cooper, Federal Practice and Procedure § 3926.2, at

326 (3d ed. 2012); see In re Saco Local Dev. Corp., 711 F.2d 441

(1st Cir. 1983)(Breyer, J.).           In Saco, the bankruptcy court had

ruled    that     an    insurance   company        creditor      in     Chapter    7

liquidation was “entitled to priority payment of Saco’s employee

group life, health and disability insurance premiums.”                      Id. at

442.    While the maximum dollar amount of unpaid premiums for

which the insurance company could receive priority treatment was

$106,000, the actual amount was uncertain because the insurance

company’s priority was subject to a reduction provided for wage

priorities      that   other   creditors       might   enjoy.     Id.     In   this

context, namely where one creditor’s rights are fixed vis-à-vis

the bankruptcy estate generally but subject to alteration vis-à-

vis other creditors’ rights, the First Circuit Court of Appeals

applied a “flexible finality” standard, holding that “an order

that    conclusively      determines       a    separable       dispute    over    a

creditor’s claim or priority” is a final order, even when other

creditors’ unfixed rights could ultimately alter the separable

dispute’s outcome at a later stage in the bankruptcy case.                        Id.

at 445-46; see id. at 443 (acknowledging that “[w]ere this not a

bankruptcy case, we doubt that the kind of order before us would




confirmation of Maiorino’s holding in In re Flor. See generally
Saco, 711 F.2d at 444-46; In re Flor, 79 F.3d at 283.


                                       38
be considered ‘final.’”); cf. In re Bartee, 212 F.3d at 283

(noting that the bankruptcy court’s order, among other things,

“conclusively       determined         the     substantive       rights       at   issue   and

ended the dispute.”).

       The same rationale from Saco applies, for example, when

lower    courts     make   debt    dischargeability              determinations,        which

are     generally       considered       final      orders       under       the   “flexible

finality”      standard.         See     In    re   Gagne,       394    B.R.    219,   224-25

(B.A.P. 1st Cir. 2008); In re Barrett, 337 B.R. 896, 898 (B.A.P.

6th    Cir.    2006)    (aff’d     487       F.3d   353).        Specifically,         once    a

bankruptcy       court     determines           whether      a     specific         debt      is

dischargeable, all that remains is to enter judgment as to that

specific debt.           However, several other matters usually remain

for    the    bankruptcy    court’s           determination.           Nevertheless,       the

discharge of one debt can affect the status and rights of one or

more    creditors.         Thus,    although        such     a    determination        likely

would not be final outside bankruptcy, see Saco, 711 F.2d at

443, it is final inside bankruptcy precisely because “flexible

finality”       allows      courts           with    appellate          jurisdiction          in

bankruptcy to pluck sufficiently discrete disputes out of the

larger,       usually    ongoing,       bankruptcy       case.          In     other   words,

“flexible       finality”     allows           circuit      courts       of     appeals       to

immediately review discrete disputes in bankruptcy cases where

traditional finality standards would not.                              However, “flexible

                                               39
finality” does not, and should not, blend a circuit court of

appeals' appellate jurisdiction over final orders as provided

under 28 U.S.C. § 158(d)(1) with a circuit court of appeals'

direct       appellate   jurisdiction            over    interlocutory         matters    as

provided under 28 U.S.C. 158(d)(2) and 1292(b).                             Otherwise, to

extend the concept of flexible finality too far would render

useless the procedures for taking direct appeals in bankruptcy

and would render as "mere surplusage" the statutory language

outlining        those   procedures         in    28     U.S.C.      §§     158(d)(2)    and

1292(b).         See Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,

2043       (2012)(stating     that   the     canon       against     surplusage     favors

statutory        interpretation      that    avoids          rendering    statutory     text

superfluous); In re Total Realty Management, LLC, 706 F.3d 245,

251    (4th       Cir.   2013)("Principles              of     statutory      construction

require      a   court   to   construe       all    parts       to   have    meaning    and,

accordingly, avoid constructions that would reduce some terms to

mere surplussage [sic].")(internal quotations omitted). 4

       Given the core purpose of the flexible finality standard in

bankruptcy, denial of confirmation of a proposed reorganization


       4
        The majority obliquely responds to this argument by
stating   that,   despite   its  holding   today,   avenues   for
interlocutory relief remain open.   Supra p. 18 n.13.    I do not
dispute such avenues remain open.       Rather, I contend such
avenues become useless the more willing a court remains to
stretch the concept of “flexible finality” in bankruptcy.



                                             40
plan cannot convincingly be a “discrete dispute” appealable as a

final order under any standard of finality.                             Indeed, Saco and

others imply that a discrete dispute for purposes of “flexible

finality”          most     properly        refers     to    situations         where       one

creditor’s         rights     become        fixed    while    other      issues       in   the

bankruptcy case remain unresolved. 5                   Cf. Matter of Lybrook, 951

F.2d 136, 137 (7th Cir. 1991)(orders in ongoing bankruptcy cases

can be final when they “resolve[] a free-standing dispute of the

sort       that,    outside        of    bankruptcy,     would     be    an    independent

lawsuit.”)(Posner, J.).                   That is not this case.               Essentially

everything         remains     unresolved       in    the    Chapter      13    bankruptcy

below.             The     majority        erroneously       argues      the      opposite.

Specifically,            because    “[t]he     bankruptcy      court’s        order    denied

confirmation         of     [the        debtor’s]    plan    and   directed       the      case

dismissed unless he took further action,” the majority concludes


       5
       A wholly reasonable exception to the standard discrete
dispute justification for applying flexible finality is found in
this Court’s holding in McDow v. Dudley, 662 F.3d 284 (2011).
In McDow, this Court held that denying a motion to dismiss a
Chapter 7 case as abusive, under 11 U.S.C. § 707(b), is a final
order under “flexible finality.” Id. at 290. After a thorough
examination of the nature of a § 707(b) motion, including the
Congressional   policy  behind   that   provision,   this  Court
concluded, in part, that allowing immediate appeal promoted the
statutory purposes of the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005.     See id.    Unlike in McDow,
however, applying flexible finality to denial of confirmation of
a reorganization plan serves no special Congressional purpose,
contrary to the majority’s broad appeal to debtor sympathy.
Supra p. 18.


                                               41
that nothing remains for the bankruptcy court to do except enter

dismissal, “unless [the debtor takes] further action.”                       Supra p.

11.     The    majority’s      diminution   of    the    twenty-one     day    window

within which the debtor may, among other things, file an amended

plan    and    resume     progress    toward       settling      at    least     some

expectations among the parties to the reorganization underscores

the weakness of the position that “flexible finality” counsels a

finding of finality when confirmation of a reorganization plan

is denied.          Indeed, an 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.

                                       B.

       Without      squarely   addressing   the        merits,   one   can    readily

glean the debtor's aim from the record below—he 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.

       However, I do not write separately to fault the debtor for

not obtaining interlocutory review or failing to march in lock-

                                       42
step       with    its    attendant       procedural            formalities.        Instead,    I

write separately, in part, to show how the statutory procedures

for an interlocutory appeal in this case could have avoided the

waste of judicial resources that has already occurred. 6                                  Recall,

pursuing          an    interlocutory         appeal       under     either    28     U.S.C.    §

158(d)(2)          or     §     1292(b)       does    not        automatically       stay    the

proceedings below.                See 28 U.S.C. §§ 158(d)(2)(D) and 1292(b).

In     other       words,        had    the    debtor       pursued       or   been       granted

interlocutory review, the bankruptcy case could have proceeded

below without pause.                    Creditor disbursements could have been

made       without      stop-gap       measures       described       below.        The    debtor

could have filed an amended plan or converted his Chapter 13

reorganization             to     Chapter       7     liquidation.             Instead,      the

bankruptcy         case       below     has    been       stayed    pending    this       appeal.

Indeed,       to       achieve    the    same       end    of    making   disbursements        to

creditors         pending       appeal    of    this       case,    the   bankruptcy        court


       6
       As explained more fully below, while encouraging judicial
economy is a laudable goal and should be pursued where possible,
enshrining that goal in a rule requiring application of a multi-
factor test for finality, as some circuit courts of appeals have
done, results in a particularly indeterminate rule since
“judicial economy” can be framed so many different ways.     This
is particularly troublesome when the rule bears so heavily on
whether a court has jurisdiction, an issue that generally should
not be fact-intensive or merits-based. See Matter of Lopez, 116
F.3d 1191, 1194 (7th Cir. 1997)(“Jurisdictional 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.”)(Posner, J.).


                                                 43
entered a conditional order confirming the debtor's plan.                            The

bankruptcy         court   likely     did   not   enter     the   conditional   order

because it suddenly changed its mind about the debtor's plan.

Rather,      the    bankruptcy      court    likely    entered      the   conditional

order to address practical difficulties the Chapter 13 Trustee

would face in administering a bankruptcy estate while an appeal

of a purportedly final order to this Court was pending. 7                            The

conditional order’s text makes this point clear.

       I also write separately to show that, with today’s ruling,

this       Court    strays     from    the    goal    of     “flexible    finality,”

reviewing discrete disputes within an ongoing bankruptcy case,

instead choosing to join those circuit courts of appeals that

have       effectively       made     the    test     for    “flexible      finality”

indeterminate.             Consequently,     along    with    the   adoption    of    an


       7
        The debtor's argument that the bankruptcy court's
conditional order confirming the debtor's plan cures any
jurisdictional defect is meritless.     First, as a definitional
matter, the fact that the order is "conditional" eliminates the
possibility that it is "final," unless conditions are satisfied.
Here, the condition to be satisfied is this Court's decision on
appeal.   Second, the Chapter 13 Trustee, and not the debtor,
moved for the conditional order in this case.    The Trustee did
so in order to ensure continuous and orderly administration of
the bankruptcy estate, because an appeal like the one in this
case disrupts bankruptcy estate administration.      Lastly, the
debtor cites Equipment Finance Group, Inc. v. Traverse Computer
Brokers, 973 F.2d 345 (4th Cir. 1992) to support his argument
that the conditional order cures any jurisdictional defect.
That case does not apply here, where the order at issue is not a
final judgment but instead is, patently, a conditional order.



                                             44
indeterminate test for finality in bankruptcy arises the specter

of jurisdiction creep. 8        Bit by bit, the majority’s version of

“flexible    finality”      will     allow     bankruptcy         events    less

significant than denial of confirmation to be final for purposes

of appeal, 9 so long as the lower court “intended” finality or so

long as judicial economy purportedly bends in just the right

direction.    In   other    words,   the    majority’s        stated   appeal   to

pragmatism   equates       to    acquiescence      to     indeterminacy,        a

regrettable move endorsed by some circuit courts of appeals that

have held that denial of confirmation of a reorganization plan

can be a final order.



                                     III.

                                      A.

     Regarding     this    Court’s    precedent,        the     majority   cites

several cases that purportedly demonstrate a “long history of

allowing appeals from debtors whose proposed plans are denied

     8
       See Thomas C. Marks, Jr., Jurisdiction Creep and the
Florida Supreme Court, 69 Alb. L. Rev. 543 n.* (2006)(citing two
related versions of the military term “mission creep” and
drawing the strongest parallel with the latter, for purposes of
the term “jurisdiction creep”).
     9
       Thankfully, the majority has drawn a line where it will
consider some bankruptcy matters interlocutory.     Regrettably,
however, the examples cited demonstrate the line’s inadequacy
and, moreover, merely list types of decisions that are
interlocutory by any measure—granting interim fee awards and
continuing an automatic stay until a motion hearing is held, for
example. See supra pp. 10-11.


                                      45
confirmation, without questioning the finality of the underlying

order.”     Supra p. 8.             The majority then relegates another of

this     Court’s    cases       to    a    footnote,       assigning      it      “minimal

persuasive       authority”        because    it    relied    entirely       on    out-of-

circuit authority without any independent reasoning.”                             Supra p.

8 n.6.; see In re Massey, 21 F. App’x 113 (4th Cir. 2001).

However,    while    citing        opinions       that   do   not   squarely       address

finality in bankruptcy and, by proxy, jurisdiction, the majority

ignores    this     Court’s        general       distaste     for     relying      on      sub

silentio holdings.            See United States v. Horton, 693 F.3d 463,

479 n.16 (4th Cir. 2012)(Agee, J.)(citing several Supreme Court

and Fourth Circuit cases for the proposition that a sub silentio

holding is not binding precedent or, in other words, that this

Court       is       “bound           by          holdings,         not         unwritten

assumptions.”)(quoting Fernandez v. Keisler, 502 F.3d 337, 343

n.2 (4th Cir. 2007)).

       I find it a curious supposition that the persuasive value

of a string of cases ignoring an issue ought to outweigh the

persuasive value of a case that squarely addresses that same

issue.      See     In   re    Massey,       21    F.    App’x   at    114     (4th     Cir.

2001)(holding       that      “[a]n       order     denying      confirmation         of    a

proposed Chapter 13 plan, without also dismissing the underlying

petition or proceeding, is not final for purposes of appeal.”).

Nevertheless,       this      is   what    the     majority      posits   through          its

                                             46
argument by analogy and reliance on sub silentio holdings.                                      See

supra pp. 7-8.             Otherwise, the majority’s assertion that its

“holding     today       does         not       extend      [this     Court’s]         appellate

jurisdiction but instead justifies its existing parameters” goes

unsupported        since       jurisdiction           in   this     case    depends       on    the

finality of a denial of confirmation.                       See supra p. 17.

      I recognize this Court’s general disposition with regard to

its   own    unpublished          opinions.                See,     e.g.,       Loc.    R.     32.1

(disfavoring citation to this Court’s unpublished opinions of a

certain age).        Nevertheless, I simply cannot find that reliance

on sub silentio holdings or other assumptions is preferable.

Accordingly, I believe this Court’s precedent is, at the very

least, confused regarding whether a denial of confirmation of a

reorganization        plan       is    a    final      order      and,     as    a     result,    I

similarly believe that examining authority from other circuit

courts of appeals as persuasive is appropriate in this case.

                                                 B.

      More circuit courts of appeals than not have concluded that

a denial of confirmation of a reorganization plan is not a final

order in bankruptcy.             See In re Flor, 79 F.3d 281, 283 (2d Cir.

1996)(holding        a     denial          of    confirmation         of    a        Chapter     11

reorganization plan was non-final, but noting that its holding

derived     from    an     earlier         case,      which    held      that    a     denial    of

confirmation        of     a    Chapter         13    reorganization        plan       was     non-

                                                 47
final)(citing Maiorino v. Branford Savings Bank, 691 F.2d 89 (2d

Cir.      1982));    In      re    Zahn,    526       F.3d    1140,    1143-44          (8th     Cir.

2008)(holding           a     denial      of     confirmation          of     a        Chapter       13

reorganization plan was non-final); In re Lievsay, 118 F.3d 661,

662       (9th   Cir.       1997)(holding        a    denial    of     confirmation             of   a

Chapter 11 reorganization plan was non-final); In re Simons, 908

F.2d 643, 645 (10th Cir. 1990)(holding a denial of confirmation

of    a    Chapter      13    reorganization           plan    was    non-final).               Other

circuit courts of appeals, while not having squarely answered

whether a denial of confirmation of a reorganization plan is a

final       order    in      bankruptcy,         indicate       they     lean          toward    the

conclusion that a denial of confirmation is interlocutory.                                       See

In re Watson, 403 F.3d 1, 5 (1st Cir. 2005)(holding that “even

if [an earlier] order denying confirmation of the [Chapter 13]

plan was not final at the time it was issued,” the order was

later final after the debtor’s opportunity to file an amended

plan or take other action had passed); In re Coffin, 435 B.R.

780, 784 (B.A.P. 1st Cir. 2010)(noting, in general, that orders

denying confirmation of a Chapter 13 reorganization plan are

interlocutory, but holding that the order in that case satisfied

the       requirements        in    28     U.S.C.      §     158(a)(3)        for       taking       an

interlocutory        appeal        from    the       Bankruptcy       Court       to    the     First

Circuit’s Bankruptcy Appellate Panel); cf. In re UAL Corp., 411

F.3d 818, 821 (7th Cir. 2005)(Posner, J.)(noting that a “Chapter

                                                 48
11 bankruptcy is not final until a plan of reorganization is

confirmed.”).           Two    circuit    courts       of    appeals     have     held     that

denial of confirmation of a reorganization plan can be final. 10

See In re Armstrong World Indus., Inc., 432 F.3d 507, 511 (3d

Cir.    2005);    In     re    Bartee,        212    F.3d    277,      283-84     (5th     Cir.

2000)(noting      that,       even     under    its     intent-based         inquiry,      the

Fifth       Circuit    Court    of     Appeals       could      find    that      denial    of

confirmation of a reorganization plan is interlocutory “if the

order addressed an issue that left the debtor able to file an

amended plan (basically to try again)”).

       The majority argues that circuit courts of appeals that

conclude       denial    of     confirmation          of    a   Chapter      13    plan      is

interlocutory         apparently       ground       their   decision      “upon       standard

finality principles.”            Supra p. 13.          I do not believe this to be

the case.        Indeed, by so arguing, the majority projects the

Tenth Circuit Court of Appeals’ reasoning in In re Simons onto

the circuit courts of appeals that happen to agree with the

Tenth       Circuit    Court    of     Appeals’        conclusion       on     this    issue,

despite their differing views on how finality is evaluated in

bankruptcy.           Recall,     In     re    Simons       explicitly       grounded       its

conclusion upon standard finality principles.                          See In re Simons,


       10
        I can find no circuit court of appeals that has held a
denial of confirmation of a reorganization plan is per se a
final order.


                                               49
908 F.2d at 644.       However, other circuit courts of appeals that

conclude a denial of confirmation of a reorganization plan is

interlocutory    arrive      at    that   conclusion     despite     the   flexible

concept of finality in bankruptcy proceedings.                  See In re Flor,

79 F.3d at 283; In re Zahn, 526 F.3d at 1143.                   In other words,

even keeping the flexible finality concept in mind, reasonable

jurists    conclude         that    a     denial   of     confirmation       of     a

reorganization       plan    is,    nevertheless,       interlocutory.           This

conclusion is not without reason.

      For example, before deciding In re Flor, the Second Circuit

Court of Appeals addressed the finality of a denial of plan

confirmation in the context of Chapter 13 reorganization plans

in   Maiorino   v.   Branford      Savings     Bank,    691   F.2d   89    (2d   Cir.

1982).    There, the Second Circuit Court of Appeals held that a

denial of confirmation of a Chapter 13 plan is not a final

order, even when an order confirming a plan is final.                             The

Maiorino Court explained in more detail:

      Nor do we find it strange as a matter of policy that
      an order confirming a plan which would, we agree, be
      final, is appealable by an objecting creditor while an
      order rejecting a proposed plan is not final and not
      appealable by the Chapter 13 debtor [except as an
      interlocutory appeal].    So long as the [Chapter 13
      bankruptcy] petition is not dismissed [. . .] it is
      open to the debtor to propose another plan, and for
      all that an appellate court would know in any given
      case such a plan might well be acceptable to the
      parties or bankruptcy judge concerned.



                                          50
Maiorino, 691 F.2d at 91 (emphasis added).                             In In re Zahn, the

Eighth Circuit Court of Appeals used similar reasoning to draw

the   distinction        between       the    finality          of     confirmation      of    a

reorganization plan and the interlocutory character of denial of

confirmation      of     a    reorganization             plan.         There,    the    Eighth

Circuit Court of Appeals noted that orders denying confirmation

of a reorganization plan “leave the way open for negotiations”

among    the    debtor       and    various      creditors           laying    claim    to    the

bankruptcy estate.             In re Zahn, 526 F.3d at 1143 (8th Cir.

2008).    Nevertheless, the majority apparently sees no reasoned

basis for distinguishing between the finality of confirmation of

a   reorganization       plan       and    the     denial        of    confirmation       of   a

reorganization plan, relying, in part, on the supposedly more

pragmatic approach to “flexible finality” espoused by the Third

and Fifth Circuit Courts of Appeals.

      However,     even       In     re    Bartee        provides       some    support       for

distinguishing         between       the     finality           of    confirmation       of    a

reorganization         plan         and      denial        of        confirmation       of     a

reorganization         plan.         There,        the    bankruptcy          court’s     order

denying confirmation of the reorganization plan also classified

a   creditor’s     claim       as    secured       over       the     debtor’s    objection;

instead, the debtor wanted the secured creditor’s claim to be

treated    as    unsecured          and    subject       to     the     Bankruptcy      Code’s

cramdown provision.            In re Bartee, 212 F.3d at 281.                          At that

                                              51
point, the secured creditor’s rights were fixed and no amount of

amended Chapter 13 plans could change the secured creditor’s

status.     In other words, even though the bankruptcy court denied

confirmation       of    the    reorganization        plan,    it     also       fixed    one

party’s rights such that a “discrete dispute” existed within the

larger bankruptcy case.            Accordingly, the bankruptcy court order

in In re Bartee both denied confirmation of the reorganization

plan and fixed the secured party’s rights. On the latter basis

alone, the bankruptcy court order in In re Bartee could perhaps

be   considered         final    under     the     “flexible    finality”            standard

without     needing       to    consider     the     question        of     a   denial      of

confirmation’s finality.

     Notwithstanding the unique factual issue in In re Bartee,

the majority insists that a more “pragmatic” rule, like those

adopted by the Third and Fifth Circuit Courts of Appeals, best

suits   denials     of     confirmation.           However,     as    noted        above,   I

believe these rules are too indeterminate to keep the “flexible

finality”       concept    from    effectively        erasing    the        line      between

final     and     interlocutory           orders     in   bankruptcy,            a     result

inconsistent       with        flexible     finality’s     goal        of       immediately

reviewing discrete disputes within an ongoing bankruptcy case.

One set of commentators stated it well

     the Third Circuit—with a close parallel in the Ninth
     Circuit—has taken flexibility at least as far as any,
     announcing an approach that could justify intensely

                                            52
     case-specific   analysis  that   would  find  finality
     whenever immediate appeal seems desirable. It seeks to
     effectuate a practical termination of the matter,
     considering the impact upon the assets of the bankrupt
     estate, the necessity for further fact-finding on
     remand, the preclusive effect of our decision on the
     merits on further litigation, and whether the interest
     of judicial economy would be furthered. These factors
     could lead almost anywhere. . .The interest of
     judicial economy can embrace the entire calculus of
     appealability. Decisions taking this approach all have
     reached results that seem sensible enough, but have
     not suggested any apparent limits

16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal   Practice     and    Procedure        §   3926.2,       at    339-342    (3d    ed.

2012).    For these reasons, examining factors such as the lower

court’s “intent” with regard to finality or enshrining judicial

economy as part of a jurisdictional rule crafts not a rule but a

set of exceptions.

     Separately, the majority highlights the Fifth Circuit Court

of Appeals’ disfavor of a situation where a debtor “must choose

between     filing    an     unwanted     or       involuntary         plan      and    then

appealing    his     own     plan,   or    dismissing            his    case     and    then

appealing    his     own   dismissal.” 11          Id.       I    believe      that     this


    11
       On this point, the majority’s concerns regarding standing
are unwarranted.   See supra p. 15 n.10.   When appealing one’s
own plan, no matter how odd a procedure it might seem, a party
can nonetheless be a “person aggrieved,” even if a second,
third, or eighth amended plan is finally confirmed. This is so
because each previous denial of confirmation—which I contend
would   be    interlocutory—merges  with    the   plan’s   final
confirmation.   See In re Giesbrecht, 429 B.R. 682, 688 (B.A.P.
9th Cir. 2010); In re Pearson, 390 B.R. 706, 710 (B.A.P. 10th
(Continued)
                                          53
rationale, which contrasts starkly with that used by the Second

and Eighth Circuit Courts of Appeals as explained above, assumes

too much of the debtor’s intent and, from a policy point of

view, “there is something to be said in a day of burgeoning

appellate dockets for taking care not to construe jurisdictional

statutes—particularly those conferring power on the parties to

agree to a direct appeal to the court of appeals—with great

liberality.”      Maiorino, 691 F.2d at 91.          Moreover, the chance

that a bankruptcy court might ultimately confirm a plan with

which    the   debtor    strongly    disagrees   should   not   override   the

value of negotiation in the plan formulation process.



                                         IV.

        Considering     all   of   the   jurisdictional   statutes   relevant

here, the debtor's quest to shape Fourth Circuit law on the

merits of his case might more properly have followed the routes



Cir. 2008)(vacated as moot).     This merger concept is not unique
to bankruptcy. See, e.g., Shannon v. General Electric Co., 186
F.3d 192 (2d Cir. 1999)(Sotomayor, J.)(“When a district court
enters a final judgment in a case, interlocutory orders rendered
in the case typically merge with the judgment for purposes of
appellate   review  .   .  .    By   making  interlocutory   orders
unappealable until a final judgment has been entered, these
rules advance the historic federal policy against piecemeal
appeals.”)(citations and internal quotation marks omitted); cf.
Richardson-Merrell,   Inc.   v.    Koller,  472   U.S.   424,   430
(1985)(“Congress has expressed a preference that some erroneous
trial court rulings go uncorrected until the appeal of a final
judgment.”).


                                         54
provided under either 28 U.S.C. §§ 158(d)(2) or 1292(b)—routes

provided for interlocutory appeals.                      Nevertheless, the debtor's

case   wended     its     way    here   under       the    pretense        of    an   appeal

pursuant to 28 U.S.C. § 158(d)(1), an appeal of a purportedly

final order, which it should not be, even under the flexible

standard of finality applied in bankruptcy.

       However, by flexing “flexible finality” in this way, the

majority    effectively         reads   out    the       avenues    for    interlocutory

relief     afforded       by     bankruptcy’s            jurisdictional          statutes.

Moreover,     the       majority’s      rule        in     this     case        discourages

negotiation       and     mediation      in        reorganization          cases      where,

frankly, those processes are needed.                        At the same time, the

majority’s      decision        encourages      start-and-stop            appeals,      thus

hampering the aim of judicial economy the majority purports to

achieve    with     its   ruling.        Finally,         the     majority       needlessly

expands    appellate      jurisdiction        in    an    area     where    it    has   been

carefully circumscribed.             I find no reasonable basis for this

jurisdictional overreach.

       For all these reasons, I dissent, with respect, from the

decision of the majority.




                                          55
