           Case: 15-11229   Date Filed: 02/11/2016   Page: 1 of 14


                                                                       [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11229
                       ________________________

                  D.C. Docket No. 1:14-cv-00054-WLS,
                     Bkcy No. 13-bkc-10835-JDW


In re: DENISE E. MOONEY,

                                        Debtor.
_____________________________________________________



DENISE E. MOONEY,

                                              Plaintiff - Appellant,

                                  versus

JOY R. WEBSTER,
Trustee,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________
                            (February 11, 2016)
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Before HULL and JILL PRYOR, Circuit Judges, and CONWAY, * District Judge.

PER CURIAM:

       This bankruptcy appeal turns on whether a Georgia statute exempts the

assets in a health savings account (“HSA”) from inclusion in a bankruptcy estate.

The relatively recent creation and subsequent rise in popularity of HSAs render an

answer to this question all the more important and pressing. Although bankruptcy

law is primarily federal law, we believe the interpretation of this state statute is

best left to the “ultimate expositor” of Georgia law. See Mullaney v. Wilbur, 421

U.S. 684, 691 (1975). Accordingly, we certify three questions about the statute to

the Supreme Court of Georgia.

                                               I.

                                               A.

       In 2008, Denise Mooney opened an HSA to assist with payment of out-of-

pocket healthcare expenses. Ms. Mooney testified that she used her personal

checking account to fund the HSA, and she used the disbursements only to pay for

her medical expenses. 1 She further testified that that her bank never informed her

that any withdrawals from the HSA were for an improper purpose.

       *
          Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
       1
         In addition, Ms. Mooney withdrew from her HSA $1,000 that was erroneously
deposited in excess of the statutory annual contribution limit. This withdrawal was permitted
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       Ms. Mooney filed a petition for Chapter 7 bankruptcy in 2013. In her

Schedule B disclosures, she listed her HSA with a value of $17,570.93. In her

Schedule C filing, she claimed the contents of the HSA as property exempt from

the bankruptcy estate pursuant to O.C.G.A. § 44-13-100(a)(2)(C) and (E).

Subsection (a)(2)(C) exempts, in relevant part, any “disability, illness, or

unemployment benefit,” whereas subsection (a)(2)(E) exempts any “payment

under a pension, annuity, or similar plan or contract on account of illness [or]

disability.”

       The Chapter 7 trustee, Joy Webster, objected to the HSA’s exemption. The

bankruptcy court held a hearing on the trustee’s objection to the exemption and

sustained the objection in a memorandum opinion. Ms. Mooney appealed to the

district court, which affirmed the bankruptcy court’s decision. Ms. Mooney now

appeals the district court’s order.

                                              B.

       Congress created health savings accounts in the Medicare Prescription Drug,

Improvement, and Modernization Act of 2003. See Pub.L. 108-173, § 1201, 117

Stat. 2066, 2469-79 (2003). Georgia authorized the establishment of HSAs in

2008. See 2008 Ga. Laws 463. HSAs encourage individuals with high-deductible

under Internal Revenue Service regulations. See I.R.S., Publication 969, Health Savings
Accounts and Other Tax-Favored Health Plans (2015),
https://www.irs.gov/publications/p969/ar02.html.
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health plans to save for healthcare expenses by offering tax-preferred treatment for

their savings. See 26 U.S.C. § 223. Although the beneficiary of an HSA may use

the funds for any purpose, see Treasury Notice 2004–50, 2004 WL 1636921 at Q–

79, expenditures used for anything other than qualified medical expenses generally

are taxable as gross income and are subject to an additional 20 percent tax. See 26

U.S.C. § 223(f)(4)(A). 2

       HSAs have the potential to affect bankruptcy estates significantly. One

HSA advisor and consultancy company estimates that the number of HSA accounts

in the United States rose to 13.8 million in 2014, a 29 percent increase from 2013.

2014 Year-End Devenir HSA Research Report, Devenir (Feb. 11, 2015),

http://www.devenir.com/research/2014-year-end-devenir-hsa-market-research-

report/. In 2014, HSAs represented over $24 billion in assets. Id. The trend

toward HSAs shows no signs of slowing down.

                                               II.

       We review de novo the legal determinations of the bankruptcy court and the

district court, but we review only for clear error the bankruptcy court’s factual

findings. In re Cassell, 688 F.3d 1291, 1294 (11th Cir. 2012), certified question

answered sub nom. Silliman v. Cassell, 738 S.E. 2d 606 (Ga. 2013). The objecting

       2
         Subsection (f)(4) includes two exceptions, neither of which is applicable here. 26
U.S.C. § 223(f)(4)(B)-(C).
                                                4
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party, here the trustee, bears the burden of proving that an exemption is improperly

claimed. See Fed. R. Bankr. P. 4003(c).

                                         III.

      In general, federal law governs bankruptcy. Typically a debtor exempts

property from a bankruptcy estate under the Bankruptcy Code. See 11 U.S.C.

§ 522(b)(1). The Bankruptcy Code permits states to adopt their own lists of

exemptions, however. See id. § 522(b)(2). Georgia has opted out of the federal

Bankruptcy Code exemptions in favor of its own list of exempt property set forth

in O.C.G.A. § 44-13-100.

      Ms. Mooney argues that the contents of her HSA are exempt from the

bankruptcy estate under two subsections of the Georgia statute, O.C.G.A. § 44-13-

100(a)(2)(C) and (a)(2)(E). In relevant part, the statute states:

      (a) . . . [A]ny debtor who is a natural person may exempt . . . for the
      purposes of bankruptcy, the following property:
      ...
      (2) The debtor's right to receive:
      ...
      (C) A disability, illness, or unemployment benefit;
      ...
      (E) A payment under a pension, annuity, or similar plan or contract on
      account of illness, disability, death, age, or length of service, to the
      extent reasonably necessary for the support of the debtor and any
      dependent of the debtor . . . .

We discuss the application of subsections (a)(2)(C) and (a)(2)(E) in turn.


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                                            A.

          To be exempt from the bankruptcy estate under O.C.G.A. § 44-13-

100(a)(2)(C), the property in question must be a “disability, illness, or

unemployment benefit.” Ms. Mooney argues that HSAs are exempt because they

fit squarely within ordinary definitions of the word “benefit” and thus are covered

by the plain language of subsection (a)(2)(C). Additionally, she contends that any

definition of “benefit” that limits the term to benefits associated with employment

is overly narrow and would exclude several of the other benefits listed in section

(a)(2).

          The trustee disagrees. According to the trustee, a benefit under subsection

(a)(2)(C) must be received from an employer, insurance, or a public program such

as social security. All of the benefits listed in section (a)(2) are monthly payments

from third parties, whereas Ms. Mooney’s HSA, funded by the accountholder

herself, allows her to access the funds at any time.

          The district court agreed with the trustee that an HSA is not exempt under

subsection (a)(2)(C), concluding that “HSA funds are not specifically or clearly set

out as exempt under the Georgia Code and are not clearly identified with or clearly

analogous to exempted funds.” In re Mooney, No. 1:14-CV-54, 2015 WL 853898,

at *4 (M.D. Ga. Feb. 26, 2015).


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                                               B.

       Under O.C.G.A. § 44-13-100(a)(2)(E), a debtor may exempt “payment

under a pension, annuity, or similar plan or contract on account of illness,

disability, death, age, or length of service, to the extent reasonably necessary for

the support of the debtor and any dependent of the debtor.” The parties dispute

whether an HSA is “[a] payment under a pension, annuity, or similar plan or

contract,” as well as whether an HSA provides payment “on account of illness [or]

disability.” 3

       Both Ms. Mooney and the trustee rely on Rousey v. Jacoway, 544 U.S. 320

(2005), and Silliman v. Cassell, 738 S.E. 2d 606 (Ga. 2013), for support. In

Rousey, the United States Supreme Court held that an individual retirement

account (“IRA”) could be exempt under the federal analogue to subsection

(a)(2)(E), 11 U.S.C. § 522(d)(10)(E). 544 U.S. at 326. First, the Supreme Court

noted that an IRA is a payment “on account of” age because the accountholders’

“right to payment from IRAs is causally connected to their age,” given that they

would suffer a 10 percent penalty if they withdrew funds from their IRAs before

age 59½. Id. at 327-28. Second, the Supreme Court held that the IRA was a


       3
          The trustee also disputes whether the HSA is “reasonably necessary for the support of”
Ms. Mooney. O.C.G.A. § 44-13-100(a)(2)(E). Because neither the bankruptcy court nor the
district court made any determination regarding this aspect of subsection (a)(2)(E), however, we
need not address this argument at this time.
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“similar plan or contract” to “stock bonus, pension, profitsharing, or annuity plans

or contracts.” Id. at 329. IRAs are similar in that they “provide income that

substitutes for wages earned as salary or hourly compensation.” Id. at 331.

       Silliman directly addressed subsection (a)(2)(E). In In re Cassell, we

discussed whether a particular type of annuity was exempt from bankruptcy under

the statute but decided to certify the question to the Supreme Court of Georgia.

688 F.3d at 1291. In Silliman, the Supreme Court of Georgia answered that the

annuity was exempt. 738 S.E. 2d at 464. 4 It applied Rousey to conclude that the

annuity qualified under the exemption statute because it “provide[d] income as a

substitute for wages.” Id. at 468. Additionally, just as with the IRA in Rousey, the

annuity provided payments “on account of” age. Id. at 471.

       Because an HSA is not a pension or an annuity, it must be a “similar plan or

contract” for the purposes of subsection (a)(2)(E). Reformulating the United States

Supreme Court’s definition of “similar” in Rousey, “[t]o be ‘similar,’ an [HSA]

must be like, though not identical to, the specific plans or contracts listed in § [44-

13-100(a)(2)], and consequently must share characteristics common to the listed

plans or contracts.” 544 U.S. at 329.



       4
         The Eleventh Circuit case is In re Cassell, 688 F.3d 1291, 1294 (11th Cir. 2012). The
Supreme Court of Georgia answered the certified questions in a case with a different name,
Silliman v. Cassell, 738 S.E. 2d 606 (Ga. 2013).
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      In Rousey, the United States Supreme Court held that IRAs were similar to

“stock bonus, pension, profitsharing, or annuity plans or contracts” because both

“provide a substitute for wages (by wages, for present purposes, [the Court] means

compensation earned as hourly or salary income), and are not mere savings

accounts.” Id. Additionally, the remaining kinds of exempt plans in the statute

(social security benefits, unemployment compensation, and local public assistance

benefits; veterans’ benefits; disability illness, or unemployment benefits; and

alimony, support, or separate maintenance) all “concern[ed] income that substitutes

for wages.” Id. at 331; accord Silliman, 292 S.E. 2d at 610 (“We agree with the

Supreme Court that the common feature of all of these plans [in § 44-13-100(a)(2)]

is that they provide income that substitutes for wages.”).

      To establish whether an IRA provides income that substitutes for wages, the

United States Supreme Court looked at several considerations: (1) minimum

distribution requirements that set in when the accountholder is “likely to be retired

and lack wage income”; (2) IRS treatment of distributions as income only in years

when the money is withdrawn, which encourages accountholders to wait until

retirement; (3) the 10 percent tax penalty that applies to distributions prior to age

59½; and (4) the 50 percent tax penalty that applies upon failure to take minimum

distributions. Id. at 331-32. “All of these features show that IRA income


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substitutes for wages lost upon retirement and distinguish IRAs from typical

savings accounts.” Id. at 332.

      Both Ms. Mooney and the trustee argue that Rousey and Silliman support

their positions. According to Ms. Mooney, payments from HSAs are a wage

substitute. In essence, she argues, individuals pay for healthcare expenses from

either their HSAs or their wages. Consequently, HSAs are wage substitutes. Ms.

Mooney also suggests that, because HSAs and IRAs nearly are identical in purpose

and structure, HSAs must be exempt if IRAs are.

      The trustee takes a contrary view. To the trustee, HSAs are intended to pay

for medical expenses not covered by high-deductible insurance plans, not to

replace wages or income. The district court agreed with the trustee: “Mooney's

HSA is not a substitute for wages; it is a place to park wages that, if used for

qualified healthcare expenses, allows favorable tax treatment.” In re Mooney,

2015 WL 853898, at *3.

      As for whether an HSA provides payments “on account of illness [or]

disability,” again the parties rely on Rousey and Silliman. In Rousey, the United

States Supreme Court held that IRAs provided payments “on account of” age

because the payments were causally connected to the Rouseys’ age. 544 U.S. at

326-29. In particular, the Supreme Court found it persuasive that the Rouseys

would pay a “10-percent tax penalty that applies to withdrawals from IRAs made
                                          10
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before the accountholder turns 59½.” Id at 327. This “substantial” penalty

suggested that it was Congress’s intent in creating IRAs to “preclude early access”

to funds in IRAs. Id. The Supreme Court rejected the trustee’s argument that an

IRA does not make payments “on account of” age because the Rouseys could

withdraw money from their IRA for any reason, regardless of age, as long as they

paid the penalty. Id. The penalty, the Supreme Court held, restricted the right to

payment of the balance of the IRA enough to connect the right to payment to age.

Id. at 328. The Supreme Court of Georgia came to the same conclusion regarding

annuities in Silliman. 738 S.E. 2d at 612-13.

      Ms. Mooney contends that HSAs provide payments “on account of illness

[or] disability” under subsection (a)(2)(E) because accountholders pay a significant

tax (double the tax in Rousey) should they use the funds for anything but qualified

medical expenses. Ms. Mooney also suggests that the Georgia General

Assembly’s intent in creating HSAs, to make healthcare more affordable, indicates

that HSAs are causally related to illness and disability. Conversely, the trustee

asserts that HSAs cannot provide payments “on account of illness [or] disability” if

the accountholder retains full control over the funds. Although Ms. Mooney used

her HSA only for qualified medical expenses, she could have used the money to

pay for personal expenses. Neither the bankruptcy court nor the district court

made conclusions as to this particular portion of subsection (a)(2)(E).
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                                               C.

       We now outline several overarching arguments made by the parties on

appeal.

       Ms. Mooney asserts that federal and Georgia legislative history support the

notion that the legislative bodies intended HSAs to be exempt in bankruptcy, either

under subsection (a)(2)(C) or (a)(2)(E). Because the Georgia General Assembly

authorized HSAs after it passed section 44-13-100, Ms. Mooney reasons, the

legislature intended HSAs to fit within the exemption. The trustee replies that if

the Georgia legislature wished to make HSAs eligible in bankruptcy, it would have

indicated that by amending the statute. At least six other states have amended their

bankruptcy statutes specifically to allow exemptions for HSAs. 5 By contrast, the

Georgia General Assembly has had the opportunity to amend the bankruptcy

statute to include HSAs but so far has declined to do so. Moreover, the trustee

argues that the legislative history of the federal exemption statute makes clear that

only certain benefits akin to future earnings of the debtor are exempt from the

bankruptcy estate.

       The trustee argues that HSAs cannot be exempt under either subsection

(a)(2)(C) or (a)(2)(E) because Ms. Mooney already will have received the funds.
       5
          Those states are Florida, Mississippi, Oregon, Tennessee, Texas, and Virginia. See Fla.
Stat. § 222.22(2); Miss. Code Ann. § 85-3-1(g); Or. Rev. Stat. § 18.345(1)(o); Tenn. Code Ann.
§ 26-2-105(b); Tex. Prop. Code § 42.0021(a); Va. Code Ann. § 38.2-5604(B).
                                               12
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Section 44-13-100(a)(2) specifies “[t]he debtor’s right to receive.” (emphasis

added). The trustee notes that Ms. Mooney deposited funds into the HSA from her

personal bank account. That is, the HSA consists of funds Ms. Mooney received

from other sources. Accordingly, the trustee submits, Ms. Mooney cannot receive

payments of which she already is in possession.

                                          IV.

      We need not try to divine the answer to these challenging questions of

Georgia law. As we noted in In re Cassell, “[w]hen there is substantial doubt

about the correct answer to a dispositive question of state law, a better option is to

certify the question to the state supreme court.” 688 F.3d at 1300. Moreover, it is

unlikely that Georgia courts would ever have the opportunity to consider this set of

important questions if we fail to certify, as federal courts have “original and

exclusive jurisdiction” over bankruptcy cases. 28 U.S.C. § 1334(a). The Supreme

Court of Georgia thoughtfully analyzed section 44-13-100 after we certified

questions to it in In re Cassell, 688 F.3d 1291. We would greatly benefit from its

assistance once again in this case.

      We certify the following questions to the Supreme Court of Georgia:

   (1) Does a debtor’s health savings account constitute a right to receive a

      “disability, illness, or unemployment benefit” for the purposes of O.C.G.A.

      § 44-13-100(a)(2)(C)?
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   (2) Does a debtor’s health savings account constitute a right to receive a

       “payment under a pension, annuity, or similar plan or contract” for the

       purposes of O.C.G.A. § 44-13-100(a)(2)(E)?

   (3) Is a debtor’s right to receive a payment from a health savings account “on

       account of illness [or] disability” for the purposes of O.C.G.A. § 44-13-

       100(a)(2)(E)?

       As in In re Cassell, “[o]ur statement of the questions is not designed to limit

the inquiry of the” Supreme Court of Georgia. 688 F.3d at 1301 (quoting Mosher

v. Speedstar Div. of AMCA Int’l, Inc., 52 F.3d 913, 917 (11th Cir. 1995)). We

reiterate that

       the particular phrasing used in the certified question is not to restrict
       the [Georgia] Supreme Court’s consideration of the problems
       involved and the issues as the Supreme Court perceives them to be in
       its analysis of the record certified in this case. This latitude extends to
       the [Georgia] Supreme Court’s restatement of the issue or issues and
       the manner in which the answers are to be given, whether as a
       comprehensive whole or in subordinate or even contingent parts.

Martinez v. Rodriquez, 394 F.2d 156, 159 (5th Cir. 1968).6

       The entire record on appeal in this case, including copies of the parties’

briefs, is transmitted along with this certification.

       QUESTIONS CERTIFIED.
       6
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before the close of business on
September 30, 1981.
                                                14
