finding that “when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation”
How later courts described this case
- finding that “when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation”
- holding that when a court calculates a chapter 13 debtor’s projected disposable income, the court may account for changes in the debtor’s income or- expenses that are known or virtually known at the time of confirmation
- explaining that the debt- or had received a one-time buyout from her former employer prior to filing for bankruptcy, and that these one-time payments had “greatly inflated” her disposable income
- establishing “projected disposable income” requires calculating “current monthly income” as prescribed by statute, and then, where circumstances warrant, “go[ing] further and tak[ing] into account other known or virtually certain information about the debtor’s future income or expenses” to adjust that income in order to make the projection more accurate
Written by the judges who cited it.
The opinion
(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HAMILTON, CHAPTER 13 TRUSTEE v. LANNING
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 08–998. Argued March 22, 2010—Decided June 7, 2010
Debtors filing for protection under Chapter 13 of the Bankruptcy Code
must agree to a court-approved plan under which they pay creditors
out of their future income. If the bankruptcy trustee or an unsecured
creditor objects, a bankruptcy court may not approve the plan unless
it provides for the full repayment of unsecured claims or “provides
that all of the debtor’s projected disposable income to be received”
over the plan’s duration “will be applied to make payments” in accor
dance with plan terms. 11 U. S. C. §1325(b)(1). Before enactment of
the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005 (BAPCPA), the Code loosely defined “disposable income.”
Though it did not define “projected disposable income,” most bank
ruptcy courts calculated it using a mechanical approach, multiplying
monthly income by the number of months in the plan and then de
termining the “disposable” portion of the result. In exceptional cases,
those courts also took into account foreseeable changes in a debtor’s
income or expenses. BAPCPA defines “disposable income” as “cur
rent monthly income received by the debtor” less “amounts reasona
bly necessary to be expended” for, e.g., the debtor’s maintenance and
support. §1325(b)(2)(A)(i). “Current monthly income,” in turn, is cal
culated by averaging the debtor’s monthly income during a 6-month
look-back period preceding the petition’s filing. See §101(10A)(A)(i).
If a debtor’s income is below the median for his or her State,
“amounts reasonably necessary” include the full amount needed for
“maintenance or support,” see §1325(b)(2)(A)(i), but if the debtor’s in
come exceeds the state median, only certain specified expenses are
included, see §§707(b)(2), 1325(b)(3)(A).
A one-time buyout from respondent’s former employer caused her
current monthly income for the six months preceding her Chapter 13
2 HAMILTON v. LANNING
Syllabus
petition to exceed her State’s median income. However, based on the
income from her new job, which was below the state median, and her
expenses, she reported a monthly disposable income of $149.03. She
thus filed a plan that would have required her to pay $144 per month
for 36 months. Petitioner, the Chapter 13 trustee, objected to confir
mation of the plan because the proposed payment amount was less
than the full amount of the claims against respondent, and because
she had not committed all of her “projected disposable income” to re
paying creditors. Petitioner claimed that the mechanical approach
was the proper way to calculate projected disposable income, and that
using that approach, respondent should pay $756 per month for 60
months. Her actual income was insufficient to make such payments.
The Bankruptcy Court endorsed a $144 payment over a 60-month
period, concluding that “projected” requires courts to consider the
debtor’s actual income. The Tenth Circuit Bankruptcy Appellate
Panel affirmed, as did the Tenth Circuit, which held that a court cal
culating “projected disposable income” should begin with the “pre
sumption” that the figure yielded by the mechanical approach is cor
rect, but that this figure may be rebutted by evidence of a substantial
change in the debtor’s circumstances.
Held: When a bankruptcy court calculates a debtor’s projected dispos
able income, the court may account for changes in the debtor’s income
or expenses that are known or virtually certain at the time of confir
mation. Pp. 6–18.
(a) Respondent has the better interpretation of “projected dispos
able income.” First, such a forward-looking approach is supported by
the ordinary meaning of “projected.” See Asgrow Seed Co. v. Winter
boer, 513 U. S. 179, 187. In ordinary usage future occurrences are
not “projected” based on the assumption that the past will necessarily
repeat itself. While a projection takes past events into account, ad
justments are often made based on other factors that may affect the
outcome. Second, “projected” appears in many federal statutes, yet
Congress rarely uses it to mean simple multiplication. See, e.g., 7
U. S. C. §1301(b)(8)(B). By contrast, as the Bankruptcy Code shows,
Congress can make its mandate of simple multiplication unambigu
ous—commonly using the term “multiplied.” See, e.g., 11 U. S. C.
§1325(b)(3). Third, under pre-BAPCPA case law, the general rule
was that courts would multiply a debtor’s current monthly income by
the number of months in the commitment period as the first step in
determining projected disposable income, but would also have discre
tion to account for known or virtually certain changes in the debtor’s
income. This is significant, since the Court “will not read the Bank
ruptcy Code to erode past bankruptcy practice absent a clear indica
tion that Congress intended such a departure,” Travelers Casualty &
Cite as: 560 U. S. ____ (2010) 3
Syllabus
Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443, 454,
and Congress did not amend the term “projected disposable income”
in 2005. Pp. 6–10.
(b) The mechanical approach also clashes with §1325’s terms.
First, §1325(b)(1)(B)’s reference to projected disposable income “to be
received in the applicable commitment period” strongly favors the
forward-looking approach. Because respondent would have far less
than $756 per month in disposable income during the plan period, pe
titioner’s projection does not accurately reflect disposable income “to
be received.” In such circumstances, the mechanical approach effec
tively reads that phrase out of the statute. Second, §1325(b)(1)’s di
rection to courts to determine projected disposable income “as of the
effective date of the plan,”— i.e., the confirmation date—is more con
sistent with the view that they are to consider postfiling information
about a debtor’s financial situation. Had Congress intended for pro
jected disposable income to be no more than a multiple of disposable
income, it could have specified the plan’s filing date as the effective
date. Third, §1325(b)(1)(B)’s requirement that projected disposable
income “will be applied to make payments” is rendered a hollow
command if, as of the plan’s effective date, the debtor lacks the
means to pay creditors in the calculated monthly amounts. Pp. 11–
12.
(c) The arguments supporting the mechanical approach are unper
suasive. The claim that the Code’s detailed and precise “disposable
income” definition would have no purpose without the mechanical
approach overlooks the important role that this statutory formula
plays under the forward-looking approach, which begins with a dis
posable income calculation. The Tenth Circuit’s rebuttable “pre
sumption” analysis simply heeds the ordinary meaning of “projected.”
This Court rejects petitioner’s argument that only the mechanical
approach is consistent with §1129(a)(15)(B), which refers to “pro
jected disposable income of the debtor (as defined in section
1325(b)(2)).” And the Court declines to infer from the fact that
§1325(b)(3) incorporates §707—which allows courts to consider “spe
cial circumstances,” but only with respect to calculating expenses—
that Congress intended to eliminate, sub silentio, the discretion that
courts previously exercised to account for known or virtually certain
changes. Pp. 12–14.
(d) Petitioner’s proposed strategies for avoiding or mitigating the
harsh results that the mechanical approach may produce for debt
ors—a debtor could delay filing a petition so as to place any extraor
dinary income outside the 6-month period; a debtor with unusually
high income during that period could seek leave to delay filing a
schedule of current income and ask the bankruptcy court to select a
4 HAMILTON v. LANNING
Syllabus
6-month period more representative of the debtor’s future disposable
income; a debtor could dismiss the petition and refile at a later, more
favorable date; and respondent might have been able to obtain relief
by filing under Chapter 7 or converting her Chapter 13 petition to
one under Chapter 7—are all flawed. Pp. 14–18.
545 F. 3d 1269, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR,
JJ., joined. SCALIA, J., filed a dissenting opinion.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–998
_________________
JAN HAMILTON, CHAPTER 13 TRUSTEE,
PETITIONER v. STEPHANIE KAY
LANNING
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 7, 2010]
JUSTICE ALITO delivered the opinion of the Court.
Chapter 13 of the Bankruptcy Code provides bankruptcy
protection to “individual[s] with regular income” whose
debts fall within statutory limits. 11 U. S. C. §§101(30),
109(e). Unlike debtors who file under Chapter 7 and must
liquidate their nonexempt assets in order to pay creditors,
see §§704(a)(1), 726, Chapter 13 debtors are permitted to
keep their property, but they must agree to a court
approved plan under which they pay creditors out of their
future income, see §§1306(b), 1321, 1322(a)(1), 1328(a). A
bankruptcy trustee oversees the filing and execution of a
Chapter 13 debtor’s plan. §1322(a)(1); see also 28 U. S. C.
§586(a)(3).
Section 1325 of Title 11 specifies circumstances under
which a bankruptcy court “shall” and “may not” confirm a
plan. §1325(a),(b). If an unsecured creditor or the bank
ruptcy trustee objects to confirmation, §1325(b)(1) requires
the debtor either to pay unsecured creditors in full or to
pay all “projected disposable income” to be received by the
debtor over the duration of the plan.
2 HAMILTON v. LANNING
Opinion of the Court
We granted certiorari to decide how a bankruptcy court
should calculate a debtor’s “projected disposable income.”
Some lower courts have taken what the parties term the
“mechanical approach,” while most have adopted what has
been called the “forward-looking approach.” We hold that
the “forward-looking approach” is correct.
I
As previously noted, §1325 provides that if a trustee or
an unsecured creditor objects to a Chapter 13 debtor’s
plan, a bankruptcy court may not approve the plan unless
it provides for the full repayment of unsecured claims or
“provides that all of the debtor’s projected disposable
income to be received” over the duration of the plan “will
be applied to make payments” in accordance with the
terms of the plan. 11 U. S. C. §1325(b)(1); see also
§1325(b)(1) (2000 ed.). Before the enactment of the Bank
ruptcy Abuse Prevention and Consumer Protection Act of
2005 (BAPCPA), 119 Stat. 23, the Bankruptcy Code (Code)
loosely defined “disposable income” as “income which is
received by the debtor and which is not reasonably neces
sary to be expended” for the “maintenance or support of
the debtor,” for qualifying charitable contributions, or for
business expenditures. §1325(b)(2)(A), (B).
The Code did not define the term “projected disposable
income,” and in most cases, bankruptcy courts used a
mechanical approach in calculating projected disposable
income. That is, they first multiplied monthly income by
the number of months in the plan and then determined
what portion of the result was “excess” or “disposable.”
See 2 K. Lundin, Chapter 13 Bankruptcy §164.1, p. 164–1,
and n. 4 (3d ed. 2000) (hereinafter Lundin (2000 ed.))
(citing cases).
In exceptional cases, however, bankruptcy courts took
into account foreseeable changes in a debtor’s income or
expenses. See In re Heath, 182 B. R. 557, 559–561
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
(Bkrtcy. App. Panel CA9 1995); In re Richardson, 283
B. R. 783, 799 (Bkrtcy. Ct. Kan. 2002); Tr. of Oral Arg. 7.
Accord, 1 Lundin §35.10, at 35–14 (2000 ed.) (“The debtor
should take some care to project estimated future income
on Schedule I to include anticipated increases or decreases
[in income] so that the schedule will be consistent with
any evidence of income the debtor would offer at a con
tested confirmation hearing”).
BAPCPA left the term “projected disposable income”
undefined but specified in some detail how “disposable
income” is to be calculated. “Disposable income” is now
defined as “current monthly income received by the
debtor” less “amounts reasonably necessary to be ex
pended” for the debtor’s maintenance and support, for
qualifying charitable contributions, and for business ex
penditures. §1325(b)(2)(A)(i) and (ii) (2006 ed.). “Current
monthly income,” in turn, is calculated by averaging the
debtor’s monthly income during what the parties refer to
as the 6-month look-back period, which generally consists
of the six full months preceding the filing of the bank
ruptcy petition. See §101(10A)(A)(i).1 The phrase
“amounts reasonably necessary to be expended” in
§1325(b)(2) is also newly defined. For a debtor whose
income is below the median for his or her State, the
phrase includes the full amount needed for “maintenance
or support,” see §1325(b)(2)(A)(i), but for a debtor with
income that exceeds the state median, only certain speci
fied expenses are included,2 see §§707(b)(2), 1325(b)(3)(A).
——————
1 However, if a debtor does not file the required schedule (Schedule I),
the bankruptcy court may select a different 6-month period. See
§101(10A)(A)(ii).
2 The formula for above-median-income debtors is known as the
“means test” and is reflected in a schedule (Form 22C) that a Chapter
13 debtor must file. See Fed. Rule Bkrtcy. Proc. Official Form 22C
(2009); In re Liverman, 383 B. R. 604, 606, n. 1, 608–609 (Bkrtcy. Ct.
NJ 2008).
4 HAMILTON v. LANNING
Opinion of the Court
II
A
Respondent had $36,793.36 in unsecured debt when she
filed for Chapter 13 bankruptcy protection in October
2006. In the six months before her filing, she received a
one-time buyout from her former employer, and this pay
ment greatly inflated her gross income for April 2006 (to
$11,990.03) and for May 2006 (to $15,356.42). App. 84,
107. As a result of these payments, respondent’s current
monthly income, as averaged from April through October
2006, was $5,343.70—a figure that exceeds the median
income for a family of one in Kansas. See id., at 78. Re
spondent’s monthly expenses, calculated pursuant to
§707(b)(2), were $4,228.71. Id., at 83. She reported a
monthly “disposable income” of $1,114.98 on Form 22C.
Ibid.
On the form used for reporting monthly income (Sched
ule I), she reported income from her new job of $1,922 per
month—which is below the state median. Id., at 66; see
also id., at 78. On the form used for reporting monthly
expenses (Schedule J), she reported actual monthly ex
penses of $1,772.97. Id., at 68. Subtracting the Schedule
J figure from the Schedule I figure resulted in monthly
disposable income of $149.03.
Respondent filed a plan that would have required her to
pay $144 per month for 36 months. See id., at 93. Peti
tioner, a private Chapter 13 trustee, objected to confirma
tion of the plan because the amount respondent proposed
to pay was less than the full amount of the claims against
her, see §1325(b)(1)(A), and because, in petitioner’s view,
respondent was not committing all of her “projected dis
posable income” to the repayment of creditors, see
§1325(b)(1)(B). According to petitioner, the proper way to
calculate projected disposable income was simply to mul
tiply disposable income, as calculated on Form 22C, by the
number of months in the commitment period. Employing
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
this mechanical approach, petitioner calculated that credi
tors would be paid in full if respondent made monthly
payments of $756 for a period of 60 months. Id., at 108.
There is no dispute that respondent’s actual income was
insufficient to make payments in that amount. Tr. of Oral
Arg. 3–4.
B
The Bankruptcy Court endorsed respondent’s proposed
monthly payment of $144 but required a 60-month plan
period. No. 06–41037 etc., 2007 WL 1451999, *8 (Bkrtcy.
Ct. Kan. 2007). The court agreed with the majority view
that the word “projected” in §1325(b)(1)(B) requires courts
“to consider at confirmation the debtor’s actual income as
it was reported on Schedule I.” Id., at *5 (emphasis
added). This conclusion was warranted by the text of
§1325(b)(1), the Bankruptcy Court reasoned, and was
necessary to avoid the absurd result of denying bank
ruptcy protection to individuals with deteriorating fi
nances in the six months before filing. Ibid.
Petitioner appealed to the Tenth Circuit Bankruptcy
Appellate Panel, which affirmed. 380 B. R. 17, 19 (2007).
The Panel noted that, although Congress redefined “dis
posable income” in 2005, it chose not to alter the pre
existing term “projected disposable income.” Id., at 24.
Thus, the Panel concluded, there was no reason to believe
that Congress intended to alter the pre-BAPCPA practice
under which bankruptcy courts determined projected
disposable income by reference to Schedules I and J but
considered other evidence when there was reason to be
lieve that the schedules did not reflect a debtor’s actual
ability to pay. Ibid.
The Tenth Circuit affirmed. 545 F. 3d 1269, 1270
(2008). According to the Tenth Circuit, a court, in calcu
lating “projected disposable income,” should begin with the
“presumption” that the figure yielded by the mechanical
6 HAMILTON v. LANNING
Opinion of the Court
approach is correct, but the Court concluded that this
figure may be rebutted by evidence of a substantial change
in the debtor’s circumstances. Id., at 1278–1279.
This petition followed, and we granted certiorari. 558
U. S. ___ (2009).
III
A
The parties differ sharply in their interpretation of
§1325’s reference to “projected disposable income.” Peti
tioner, advocating the mechanical approach, contends that
“projected disposable income” means past average monthly
disposable income multiplied by the number of months in
a debtor’s plan. Respondent, who favors the forward
looking approach, agrees that the method outlined by
petitioner should be determinative in most cases, but she
argues that in exceptional cases, where significant
changes in a debtor’s financial circumstances are known or
virtually certain, a bankruptcy court has discretion to
make an appropriate adjustment. Respondent has the
stronger argument.
First, respondent’s argument is supported by the ordi
nary meaning of the term “projected.” “When terms used
in a statute are undefined, we give them their ordinary
meaning.” Asgrow Seed Co. v. Winterboer, 513 U. S. 179,
187 (1995). Here, the term “projected” is not defined, and
in ordinary usage future occurrences are not “projected”
based on the assumption that the past will necessarily
repeat itself. For example, projections concerning a com
pany’s future sales or the future cash flow from a license
take into account anticipated events that may change past
trends. See, e.g., Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U. S. 308, 316 (2007) (describing adjustments to
“projected sales” in light of falling demand); Innovair
Aviation, Ltd. v. United States, 83 Fed. Cl. 498, 502, 504–
506 (2008) (calculating projected cash flow and noting that
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
past sales are “not necessarily the number of sales” that
will be made in the future). On the night of an election,
experts do not “project” the percentage of the votes that a
candidate will receive by simply assuming that the candi
date will get the same percentage as he or she won in the
first few reporting precincts. And sports analysts do not
project that a team’s winning percentage at the end of a
new season will be the same as the team’s winning per
centage last year or the team’s winning percentage at the
end of the first month of competition. While a projection
takes past events into account, adjustments are often
made based on other factors that may affect the final
outcome. See In re Kibbe, 361 B. R. 302, 312, n. 9 (Bkrtcy.
App. Panel CA1 2007) (contrasting “multiplied,” which
“requires only mathematical acumen,” with “projected,”
which requires “mathematic acumen adjusted by delibera
tion and discretion”).
Second, the word “projected” appears in many federal
statutes, yet Congress rarely has used it to mean simple
multiplication. For example, the Agricultural Adjustment
Act of 1938 defined “projected national yield,” “projected
county yield,” and “projected farm yield” as entailing
historical averages “adjusted for abnormal weather condi
tions,” “trends in yields,” and “any significant changes in
production practices.” 7 U. S. C. §1301(b)(8)(B), (13)(J),
(K).3
——————
3 See also, e.g., 8 U. S. C. §1364(a), (c)(2) (requiring the triennial im
migration-impact report to include information “projected for the
succeeding five-year period, based on reasonable estimates substanti
ated by the best available evidence”); 10 U. S. C. A. §2433a(a)(2)(B)
(2010 Cum. Supp.) (“projected cost of completing the [defense acquisi
tion] program based on reasonable modification of [current] require
ments”); 15 U. S. C. §719c(c)(2) (2006 ed.) (“projected natural gas supply
and demand”); 25 U. S. C. §2009(c)(1), (2) (requiring the Director of the
Office of Indian Education Programs to submit an annual report
containing certain projections and “a description of the methods and
formulas used to calculate the amounts projected”).
8 HAMILTON v. LANNING
Opinion of the Court
By contrast, we need look no further than the Bank
ruptcy Code to see that when Congress wishes to mandate
simple multiplication, it does so unambiguously—most
commonly by using the term “multiplied.” See, e.g., 11
U. S. C. §1325(b)(3) (“current monthly income, when mul
tiplied by 12”); §§704(b)(2), 707(b)(6), (7)(A) (same);
§707(b)(2)(A)(i), (B)(iv) (“multiplied by 60”). Accord, 2
U. S. C. §58(b)(1)(B) (“multiplied by the number of months
in such year”); 5 U. S. C. §8415(a) (“multiplied by such
individual’s total service”); 42 U. S. C. §403(f)(3) (“multi
plied by the number of months in such year”).
Third, pre-BAPCPA case law points in favor of the
“forward-looking” approach. Prior to BAPCPA, the gen
eral rule was that courts would multiply a debtor’s current
monthly income by the number of months in the commit
ment period as the first step in determining projected
disposable income. See, e.g., In re Killough, 900 F. 2d 61,
62–63 (CA5 1990) (per curiam); In re Anderson, 21 F. 3d
355, 357 (CA9 1994); In re Solomon, 67 F. 3d 1128, 1132
(CA4 1995). See 2 Lundin §164.1, at 164–1 (2000 ed.)
(“Most courts focus on the debtor’s current income and
extend current income (and expenditures) over the life of
the plan to calculate projected disposable income”). But
courts also had discretion to account for known or virtu
ally certain changes in the debtor’s income. See Heath,
182 B. R., at 559–561; Richardson, 283 B. R., at 799; In re
James, 260 B. R. 498, 514–515 (Bkrtcy. Ct. Idaho 2001);
In re Jobe, 197 B. R. 823, 826–827 (Bkrtcy. Ct. WD Tex.
1996); In re Crompton, 73 B. R. 800, 808 (Bkrtcy. Ct. ED
Pa. 1987); see also In re Schyma, 68 B. R. 52, 63 (Bkrtcy.
Ct. Minn. 1985) (“[T]he prospect of dividends . . . is not so
certain as to require Debtors or the Court to consider them
as regular or disposable income”); In re Krull, 54 B. R. 375,
378 (Bkrtcy. Ct. Colo. 1985) (“Since there are no changes
in income which can be clearly foreseen, the Court must
simply multiply the debtor’s current disposable income by
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
36 in order to determine his ‘projected’ income”).4 This
judicial discretion was well documented in contemporary
bankruptcy treatises. See 8 Collier on Bankruptcy
¶1325.08[4][a], p. 1325–50 (15th ed. rev. 2004) (hereinaf
ter Collier) (“As a practical matter, unless there are
changes which can be clearly foreseen, the court must
simply multiply the debtor’s known monthly income by 36
and determine whether the amount to be paid under the
plan equals or exceeds that amount” (emphasis added)); 3
W. Norton, Bankruptcy Law and Practice §75.10, p. 64
(1991) (“It has been held that the court should focus upon
present monthly income and expenditures and, absent
extraordinary circumstances, project these current
amounts over the life of the plan to determine projected
disposable income” (emphasis added)); 2 Lundin §164.1, at
164–28 to 164–31 (2000 ed.) (describing how reported
decisions treated anticipated changes in income, particu
larly where such changes were “too speculative to be pro
jected”); see also In re Greer, 388 B. R. 889, 892 (Bkrtcy.
——————
4 When pre-BAPCPA courts declined to make adjustments based on
possible changes in a debtor’s future income or expenses, they did so
because the changes were not sufficiently foreseeable, not because they
concluded that they lacked discretion to depart from a strictly mechani
cal approach. In In re Solomon, 67 F. 3d 1128 (1995), for example, the
Fourth Circuit refused to make such an adjustment because it deemed
disbursements from an individual retirement account during the plan
period to be “speculative” and “hypothetical.” Id., at 1132. There is no
reason to assume that the result would have been the same if future
disbursements had been more assured. That was certainly true of In re
Killough, 900 F. 2d 61 (1990), in which the Fifth Circuit declined to
require inclusion of overtime pay in projected disposable income be
cause it “was not definite enough.” Id., at 65; see also id., at 66
(“[T]here may be instances where income obtained through working
overtime can and should appropriately be included in a debtor’s pro
jected disposable income”). See also Education Assistance Corp. v.
Zellner, 827 F. 2d 1222, 1226 (CA8 1987) (affirming bankruptcy court’s
exclusion of future tax returns and salary increases from debtor’s
projected disposable income because they were “speculative”).
10 HAMILTON v. LANNING
Opinion of the Court
Ct. CD Ill. 2008) (“ ‘As a practical matter, unless there are
changes which can be clearly foreseen, the court must
simply multiply the debtor’s current monthly income by
thirty-six’ ” (quoting 5 Collier ¶1325.08[4][a] (15th ed. rev.
1995))); James, supra, at 514 (same) (quoting 8 Collier
¶1325.08[4][a] (15th ed. rev. 2000)); Crompton, supra, at
808 (same) (citing 5 Collier ¶1325.08[4][a], [b], at 1325–47
to 1325–48 (15th ed. 1986)). Accord, 8 Collier
¶1325.08[4][b], at 1325–60 (15th ed. rev. 2007) (“As with
the income side of the budget, the court must simply use
the debtor’s current expenses, unless a change in them is
virtually certain” (emphasis added)). Indeed, petitioner
concedes that courts possessed this discretion prior to
BAPCPA. Tr. of Oral Arg. 7.
Pre-BAPCPA bankruptcy practice is telling because we
“ ‘will not read the Bankruptcy Code to erode past bank
ruptcy practice absent a clear indication that Congress
intended such a departure.’ ” Travelers Casualty & Surety
Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443,
454 (2007); Lamie v. United States Trustee, 540 U. S. 526,
539 (2004); Cohen v. de la Cruz, 523 U. S. 213, 221 (1998);
see also Grogan v. Garner, 498 U. S. 279, 290 (1991); Kelly
v. Robinson, 479 U. S. 36, 47 (1986). Congress did not
amend the term “projected disposable income” in 2005,
and pre-BAPCPA bankruptcy practice reflected a widely
acknowledged and well-documented view that courts may
take into account known or virtually certain changes to
debtors’ income or expenses when projecting disposable
income. In light of this historical practice, we would ex
pect that, had Congress intended for “projected” to carry a
specialized—and indeed, unusual—meaning in Chapter
13, Congress would have said so expressly. Cf., e.g., 26
U. S. C. §279(c)(3)(A), (B) (expressly defining “projected
earnings” as reflecting a 3-year historical average).
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
B
The mechanical approach also clashes repeatedly with
the terms of 11 U. S. C. §1325.
First, §1325(b)(1)(B)’s reference to projected disposable
income “to be received in the applicable commitment
period” strongly favors the forward-looking approach.
There is no dispute that respondent would in fact receive
far less than $756 per month in disposable income during
the plan period, so petitioner’s projection does not accu
rately reflect “income to be received” during that period.
See In re Nowlin, 576 F. 3d 258, 263 (CA5 2009). The
mechanical approach effectively reads this phrase out of
the statute when a debtor’s current disposable income is
substantially higher than the income that the debtor
predictably will receive during the plan period. See
Kawaauhau v. Geiger, 523 U. S. 57, 62 (1998) (“[W]e are
hesitant to adopt an interpretation of a congressional
enactment which renders superfluous another portion of
that same law” (internal quotation marks omitted)).
Second, §1325(b)(1) directs courts to determine projected
disposable income “as of the effective date of the plan,”
which is the date on which the plan is confirmed and
becomes binding, see §1327(a). Had Congress intended for
projected disposable income to be nothing more than a
multiple of disposable income in all cases, we see no rea
son why Congress would not have required courts to de
termine that value as of the filing date of the plan. See
Fed. Rule Bkrtcy. Proc. 3015(b) (requiring that a plan be
filed within 14 days of the filing of a petition), online at
http://www.uscourts.gov/RulesAndPolicies/FederalRulema
king/Overview/BankruptcyRules.aspx (all Internet mate
rials as visited June 3, 2010, and available in Clerk of
Court’s case file). In the very next section of the Code, for
example, Congress specified that a debtor shall commence
payments “not later than 30 days after the date of the
filing of the plan.” §1326(a)(1) (emphasis added). Con
12 HAMILTON v. LANNING
Opinion of the Court
gress’ decision to require courts to measure projected
disposable income “as of the effective date of the plan” is
more consistent with the view that Congress expected
courts to consider postfiling information about the debtor’s
financial circumstances. See 545 F. 3d, at 1279
(“[D]etermining whether or not a debtor has committed all
projected disposable income to repayment of the unsecured
creditors ‘as of the effective date of the plan’ suggests
consideration of the debtor’s actual financial circum
stances as of the effective date of the plan”).
Third, the requirement that projected disposable income
“will be applied to make payments” is most naturally read
to contemplate that the debtor will actually pay creditors
in the calculated monthly amounts. §1325(b)(1)(B). But
when, as of the effective date of a plan, the debtor lacks
the means to do so, this language is rendered a hollow
command.
C
The arguments advanced in favor of the mechanical
approach are unpersuasive. Noting that the Code now
provides a detailed and precise definition of “disposable
income,” proponents of the mechanical approach maintain
that any departure from this method leaves that definition
“ ‘with no apparent purpose.’ ” In re Kagenveama, 541 F.
3d 868, 873 (CA9 2008). This argument overlooks the
important role that the statutory formula for calculating
“disposable income” plays under the forward-looking
approach. As the Tenth Circuit recognized in this case, a
court taking the forward-looking approach should begin by
calculating disposable income, and in most cases, nothing
more is required. It is only in unusual cases that a court
may go further and take into account other known or
virtually certain information about the debtor’s future
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
income or expenses.5
Petitioner faults the Tenth Circuit for referring to a
rebuttable “presumption” that the figure produced by the
mechanical approach accurately represents a debtor’s
“projected disposable income.” See 545 F. 3d, at 1278–
1279. Petitioner notes that the Code makes no reference
to any such presumption but that related Code provisions
expressly create other rebuttable presumptions. See
§707(b)(2)(A)(i) and (B)(i). He thus suggests that the
Tenth Circuit improperly supplemented the text of the
Code.
The Tenth Circuit’s analysis, however, simply heeds the
ordinary meaning of the term “projected.” As noted, a
person making a projection uses past occurrences as a
starting point, and that is precisely what the Tenth Cir
cuit prescribed. See, e.g., Nowlin, supra, at 260, 263.
Petitioner argues that only the mechanical approach is
consistent with §1129(a)(15)(B), which refers to “projected
disposable income of the debtor (as defined in section
1325(b)(2)).” This cross-reference, petitioner argues,
shows that Congress intended for the term “projected
disposable income” to incorporate, presumably in all con
texts, the defined term “disposable income.” It is evident
that §1129(a)(15)(B) refers to the defined term “dis-
posable income,” see §1325(b)(2), but that fact offers
no insight into the meaning of the word “projected”
in §§1129(a)(15)(B) and 1325(b)(1)(B). We fail to see
how that word acquires a specialized meaning as a
result of this cross-reference—particularly where both
§§1129(a)(15)(B) and 1325(b)(1)(B) refer to projected dis
posable income “to be received” during the relevant period.
See supra, at 11.
——————
5 For the same reason, the phrase “[f]or purposes of this subsection”
in §1325(b)(2) is not rendered superfluous by the forward-looking
approach.
14 HAMILTON v. LANNING
Opinion of the Court
Petitioner also notes that §707 allows courts to take
“special circumstances” into consideration, but that
§1325(b)(3) incorporates §707 only with respect to calcu
lating expenses. See In re Wilson, 397 B. R. 299, 314–315
(Bkrtcy. Ct. MDNC 2008). Thus, he argues, a “special
circumstances” exception should not be inferred with
respect to the debtor’s income. We decline to infer from
§1325’s incorporation of §707 that Congress intended to
eliminate, sub silentio, the discretion that courts previ
ously exercised when projecting disposable income to
account for known or virtually certain changes. Accord,
In re Liverman, 383 B. R. 604, 613, and n. 15 (Bkrtcy. Ct.
NJ 2008).
D
In cases in which a debtor’s disposable income during
the 6-month look-back period is either substantially lower
or higher than the debtor’s disposable income during the
plan period, the mechanical approach would produce
senseless results that we do not think Congress intended.
In cases in which the debtor’s disposable income is higher
during the plan period, the mechanical approach would
deny creditors payments that the debtor could easily
make. And where, as in the present case, the debtor’s
disposable income during the plan period is substantially
lower, the mechanical approach would deny the protection
of Chapter 13 to debtors who meet the chapter’s main
eligibility requirements. Here, for example, respondent is
an “individual whose income is sufficiently stable and
regular” to allow her “to make payments under a plan,”
§101(30), and her debts fall below the limits set out in
§109(e). But if the mechanical approach were used, she
could not file a confirmable plan. Under §1325(a)(6), a
plan cannot be confirmed unless “the debtor will be able to
make all payments under the plan and comply with the
plan.” And as petitioner concedes, respondent could not
Cite as: 560 U. S. ____ (2010) 15
Opinion of the Court
possibly make the payments that the mechanical approach
prescribes.
In order to avoid or at least to mitigate the harsh results
that the mechanical approach may produce for debtors,
petitioner advances several possible escape strategies. He
proposes no comparable strategies for creditors harmed by
the mechanical approach, and in any event none of the
maneuvers that he proposes for debtors is satisfactory.
1
Petitioner first suggests that a debtor may delay filing a
petition so as to place any extraordinary income outside
the 6-month look-back period. We see at least two prob
lems with this proposal.
First, delay is often not a viable option for a debtor
sliding into bankruptcy.
“Potential Chapter 13 debtors typically find a law
yer’s office when they are one step from financial
Armageddon: There is a foreclosure sale of the
debtor’s home the next day; the debtor’s only car
was mysteriously repossessed in the dark of last
night; a garnishment has reduced the debtor’s
take-home pay below the ordinary requirements
of food and rent. Instantaneous relief is ex-
pected, if not necessary.” K. Lundin & W. Brown,
Chapter 13 Bankruptcy §3.1[2] (4th ed. rev.2009),
http: // www.ch13online.com / Subscriber / Chapter _13_
Bankruptcy_4th_Lundin_Brown.htm.
See also id., §38.1 (“Debtor’s counsel often has little discre
tion when to file the Chapter 13 case”).
Second, even when a debtor is able to delay filing a
petition, such delay could be risky if it gives the appear
ance of bad faith. See 11 U. S. C. §1325(a)(7) (requiring,
as a condition of confirmation, that “the action of the
debtor in filing the petition was in good faith”); see also,
16 HAMILTON v. LANNING
Opinion of the Court
e.g., In re Myers, 491 F. 3d 120, 125 (CA3 2007) (citing
“ ‘the timing of the petition’ ” as a factor to be considered in
assessing a debtor’s compliance with the good-faith re
quirement). Accord, Neufeld v. Freeman, 794 F. 2d 149,
153 (CA4 1986) (a debtor’s prepetition conduct may inform
the court’s good-faith inquiry).
2
Petitioner next argues that a debtor with unusually
high income during the 6 months prior to the filing of a
petition, could seek leave to delay filing a schedule of
current income (Schedule I) and then ask the bankruptcy
court to exercise its authority under §101(10A)(A)(ii) to
select a 6-month period that is more representative of the
debtor’s future disposable income. We see little merit in
this convoluted strategy. If the Code required the use of
the mechanical approach in all cases, this strategy would
improperly undermine what the Code demands. And if, as
we believe, the Code does not insist upon rigid adherence
to the mechanical approach in all cases, this strategy is
not needed. In any event, even if this strategy were al
lowed, it would not help all debtors whose disposable
income during the plan period is sharply lower than their
previous disposable income.6
3
Petitioner suggests that a debtor can dismiss the peti
tion and refile at a later, more favorable date. But peti
tioner offers only the tepid assurance that courts “gener
ally” do not find this practice to be abusive. Brief for
Petitioner 53. This questionable stratagem plainly cir
cumvents the statutory limits on a court’s ability to shift
——————
6 Under 11 U. S. C. §521(i)(3), a debtor seeking additional time to file
a schedule of income must submit the request within 45 days after
filing the petition, and the court may not grant an extension of more
than 45 days.
Cite as: 560 U. S. ____ (2010) 17
Opinion of the Court
the look-back period, see supra, at 16, and n. 6, and should
give debtors pause.7 Cf. In re Glenn, 288 B. R. 516, 520
(Bkrtcy. Ct. ED Tenn. 2002) (noting that courts should
consider, among other factors, “whether this is the first or
[a] subsequent filin[g]” when assessing a debtor’s compli
ance with the good-faith requirement).
4
Petitioner argues that respondent might have been able
to obtain relief by filing under Chapter 7 or by converting
her Chapter 13 petition to one under Chapter 7. The
availability of Chapter 7 to debtors like respondent who
have above-median incomes is limited. In respondent’s
case, a presumption of abuse would attach under
§707(b)(2)(A)(i) because her disposable income, “multiplied
by 60,” exceeds the amounts specified in subclauses (I) and
(II). See also §707(b)(1) (allowing a court to dismiss a
petition filed by a debtor “whose debts are primarily con
sumer debts . . . if it finds that the granting of relief would
be an abuse of the provisions of this chapter”); App. 86–88
(“Notice to Individual Consumer Debtor under §342(b) of
the Bankruptcy Code”) (“If your income is greater than the
median income for your state of residence and family size,
in some cases, creditors have the right to file a motion
requesting that the court dismiss your case under §707(b)
of the Code”). Nevertheless, petitioner argues, respondent
might have been able to overcome this presumption by
claiming that her case involves “special circumstances”
within the meaning of §707(b)(2)(B)(i). Section 707 identi
——————
7 For example, a debtor otherwise eligible for Chapter 13 protection
may become ineligible if “at any time in the preceding 180 days” “the
case was dismissed by the court for willful failure of the debtor to abide
by orders of the court, or to appear before the court in proper prosecu
tion of the case,” or “the debtor requested and obtained the voluntary
dismissal of the case following the filing of a request for relief from the
automatic stay provided by section 362 of this title.” §109(g).
18 HAMILTON v. LANNING
Opinion of the Court
fies as examples of “special circumstances” a “serious
medical condition or a call or order to active duty in the
Armed Forces,” ibid., and petitioner directs us to no au
thority for the proposition that a prepetition decline in
income would qualify as a “special circumstance.” In any
event, the “special circumstances” exception is available
only to the extent that “there is no reasonable alternative,”
ibid., a proposition we reject with our interpretation of
§1325(b)(1) today.8
In sum, each of the strategies that petitioner identifies
for mitigating the anomalous effects of the mechanical
approach is flawed. There is no reason to think that Con
gress meant for any of these strategies to operate as a
safety valve for the mechanical approach.
IV
We find petitioner’s remaining arguments unpersuasive.
Consistent with the text of §1325 and pre-BAPCPA prac
tice, we hold that when a bankruptcy court calculates a
debtor’s projected disposable income, the court may ac
count for changes in the debtor’s income or expenses that
are known or virtually certain at the time of confirmation.
We therefore affirm the decision of the Court of Appeals.
It is so ordered.
——————
8 Petitioner also suggests that some Chapter 13 debtors may be able
to plead “special circumstances” on the expense side of the calculation
by virtue of BAPCPA’s incorporation of the Chapter 7 means test into
Chapter 13. See §707(b)(2)(B)(i), (ii). This is no help to debtors like
respondent, whose income has changed but whose expenses are con
stant.
Cite as: 560 U. S. ____ (2010) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–998
_________________
JAN HAMILTON, CHAPTER 13 TRUSTEE,
PETITIONER v. STEPHANIE KAY
LANNING
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 7, 2010]
JUSTICE SCALIA, dissenting.
The Bankruptcy Code requires a debtor seeking relief
under Chapter 13, unless he will repay his unsecured
creditors in full, to pay them all of his “projected dispos
able income” over the life of his repayment plan. 11
U. S. C. §1325(b)(1)(B). The Code provides a formula for
“project[ing]” what a debtor’s “disposable income” will be,
which so far as his earnings are concerned turns only on
his past income. The Court concludes that this formula
should not apply in “exceptional cases” where “known or
virtually certain” changes in the debtor’s circumstances
make it a poor predictor. Ante, at 6. Because that conclu
sion is contrary to the Code’s text, I respectfully dissent.
I
A
A bankruptcy court cannot confirm a Chapter 13 plan
over the objection of the trustee unless, as of the plan’s
effective date, either (A) the property to be distributed on
account of the unsecured claim at issue exceeds its amount
or (B) the “the plan provides that all of the debtor’s pro
jected disposable income to be received in the applicable
commitment period beginning on the date that the first
payment is due under the plan will be applied to make
2 HAMILTON v. LANNING
SCALIA, J., dissenting
payments to unsecured creditors under the plan.”
§1325(b)(1)(B). The Code does not define “projected dis
posable income,” but it does define “disposable income.”
The next paragraph of §1325(b) provides that “[f]or pur
poses of this subsection, the term ‘disposable income’
means current monthly income received by the debtor,”
excluding certain payments received for child support,
“less amounts reasonably necessary to be expended” on
three categories of expenses. §1325(b)(2). The Code in
turn defines “current monthly income” as “the average
monthly income from all sources that the debtor re
ceives . . . derived during the 6-month period ending on”
one of two dates.1 §101(10A)(A). Whichever date applies,
a debtor’s “current monthly income,” and thus the income
component of his “disposable income,” is a sum certain, a
rate fixed once for all based on historical figures.
This definition of “disposable income” applies to the use
of that term in the longer phrase “projected disposable
income” in §1325(b)(1)(B), since the definition says that it
applies to subsection (b). Cf. §1129(a)(15)(B) (referring to
“the projected disposable income of the debtor (as defined
in section 1325(b)(2))”). The puzzle is what to make of the
word “projected.”
In the Court’s view, this modifier makes all the differ
ence. Projections, it explains, ordinarily account for later
developments, not just past data. Ante, at 6–7. Thus, the
Court concludes, in determining “projected disposable
income” a bankruptcy court may depart from §1325(b)(2)’s
——————
1 If
the debtor files a schedule of current income, as ordinarily re
quired by §521(a)(1)(B)(ii), then the 6-month period ends on the last
day of the month preceding the date the case is commenced,
§101(10A)(A)(i)—that is, when the petition is filed, §§301(a), 302(a),
303(b). If the debtor does not file such a schedule on time—which the
bankruptcy court apparently may excuse him from doing,
§521(a)(1)(B)(ii)—the 6-month period ends on the date the bankruptcy
court determines the debtor’s current income. §101(10A)(A)(ii).
Cite as: 560 U. S. ____ (2010) 3
SCALIA, J., dissenting
inflexible formula, at least in “exceptional cases,” to ac
count for “significant changes” in the debtor’s circum
stances, either actual or anticipated. Ante, at 6.
That interpretation runs aground because it either
renders superfluous text Congress included or requires
adding text Congress did not. It would be pointless to
define disposable income in such detail, based on data
during a specific 6-month period, if a court were free to set
the resulting figure aside whenever it appears to be a poor
predictor. And since “disposable income” appears nowhere
else in §1325(b), then unless §1325(b)(2)’s definition ap
plies to “projected disposable income” in §1325(b)(1)(B), it
does not apply at all.
The Court insists its interpretation does not render
§1325(b)(2)’s incorporation of “current monthly income” a
nullity: A bankruptcy court must still begin with that
figure, but is simply free to fiddle with it if a “significant”
change in the debtor’s circumstances is “known or virtu
ally certain.” Ante, at 6, 12. That construction conven
iently avoids superfluity, but only by utterly abandoning
the text the Court purports to construe. Nothing in the
text supports treating the definition of disposable income
Congress supplied as a suggestion. And even if the word
“projected” did allow (or direct) a court to disregard
§1325(b)(2)’s fixed formula and to consider other data,
there would be no basis in the text for the restrictions the
Court reads in, regarding when and to what extent a court
may (or must) do so. If the statute authorizes estimations,
it authorizes them in every case, not just those where
changes to the debtor’s income are both “significant” and
either “known or virtually certain.” Ibid. If the evidence
indicates it is merely more likely than not that the
debtor’s income will increase by some minimal amount,
there is no reading of the word “projected” that permits (or
requires) a court to ignore that change. The Court, in
short, can arrive at its compromise construction only by
4 HAMILTON v. LANNING
SCALIA, J., dissenting
rewriting the statute.
B
The only reasonable reading that avoids deleting words
Congress enacted, or adding others it did not, is this:
Setting aside expenses excludable under §1325(b)(2)(A)
and (B), which are not at issue here, a court must calcu
late the debtor’s “projected disposable income” by multi
plying his current monthly income by the number of
months in the “applicable commitment period.” The word
“projected” in this context, I agree, most sensibly refers to
a calculation, prediction, or estimation of future events,
see Brief for United States as Amicus Curiae 12–13 (col
lecting dictionary definitions); see also Webster’s New
International Dictionary 1978 (2d ed. 1957). But one
assuredly can calculate, predict, or estimate future figures
based on the past. And here Congress has commanded
that a specific historical figure shall be the basis for the
projection.
The Court rejects this reading as unrealistic. A projec
tion, the Court explains, may be based in part on past
data, but “adjustments are often made based on other
factors that may affect the final outcome.” Ante, at 7.
Past performance is no guarantee of future results. No
gambler would bet the farm using “project[ions]” that are
based only on a football team’s play before its star quar
terback was injured. And no pundit would keep his post if
he “projected” election results relying only on prior cycles,
ignoring recent polls. So too, the Court appears to reason,
it makes no sense to say a court “project[s]” a debtor’s
“disposable income” when it considers only what he earned
in a specific 6-month period in the past. Ante, at 6–7.
Such analogies do not establish that carrying current
monthly income forward to determine a debtor’s future
ability to pay is not a “projection.” They show only that
relying exclusively on past data for the projection may be a
Cite as: 560 U. S. ____ (2010) 5
SCALIA, J., dissenting
bad idea. One who is asked to predict future results, but
is armed with no other information than prior perform
ance, can still make a projection; it may simply be off the
mark. Congress, of course, could have tried to prevent
that possibility by prescribing, as it has done in other
contexts, that a debtor’s projected disposable income be
determined based on the “best available evidence,” 8
U. S. C. §1364(c)(2), or “any . . . relevant information,” 25
U. S. C. §2009(c)(1). But it included no such prescription
here, and instead identified the data a court should con
sider. Perhaps Congress concluded that other information
a bankruptcy court might consider is too uncertain or too
easily manipulated. Or perhaps it thought the cost of
considering such information outweighed the benefits. Cf.
7 U. S. C. §1301(b)(13)(J)–(M) (requiring national and
local “projected” yields of various crops to be adjusted only
for abnormal weather, trends in yields, and production
practices, apparently to the exclusion of other presumably
relevant variables such as a sudden increase or decrease
in the number of producers, farm subsidies, etc.). In all
events, neither the reasons for nor the wisdom of the
projection method Congress chose has any bearing on
what the statute means.
The Court contends that if Congress really meant courts
to multiply a static figure by a set number of months, it
would have used the word “multiplied,” as it has done
elsewhere—indeed, elsewhere in the same subsection, see,
e.g., 11 U. S. C. §1325(b)(3)—instead of the word “pro
jected.”2 Ante, at 8. I do not dispute that, as a general
matter, we should presume that Congress does not ordi
narily use two words in the same context to denote the
——————
2 Of course, since the number of months in the commitment period
may vary, Congress could not simply have substituted a single word,
but would have had to write “disposable income multiplied by the
number of months in the applicable commitment period” or some such
phrase.
6 HAMILTON v. LANNING
SCALIA, J., dissenting
same thing. But if forced to choose between (A) assuming
Congress enacted text that serves no purpose at all, (B)
ascribing an unheard-of meaning to the word “projected”
(loaded with made-to-order restrictions) simply to avoid
undesirable results, or (C) assuming Congress employed
synonyms to express a single idea, the last is obviously the
least evil.
In any event, we are not put to that choice here. While
under my reading a court must determine the income half
of the “projected disposable income” equation by multiply
ing a fixed number, that is not necessarily true of the
expenses excludable under §1325(b)(2)(A) and (B). Unlike
the debtor’s current monthly income, none of the three
types of expenses—payments for the support of the debtor
and his dependents, charitable contributions, and ex
penses to keep an existing business above water—is ex
plicitly defined in terms of historical figures (at least for
debtors with incomes below the state median). The first of
those cannot possibly (in many cases) be determined based
on the same 6-month period from which current monthly
income is derived,3 and the texts of the other two are
consistent with determining expenses based on expecta
tions. See §1325(b)(2)(A)(ii) (charitable expenses to quali
fied entities limited to “15 percent of gross income of the
debtor for the year in which the contributions are made”);
§1325(b)(2)(B) (“expenditures necessary for the continua
tion, preservation, and operation” of a business in which
the debtor is engaged).
In short, a debtor’s projected disposable income consists
of two parts: one (current monthly income) that is fixed
——————
3 For a debtor whose income is below the state median, excludable
expenses include domestic-support obligations “that first becom[e]
payable after the date the petition is filed,” §1325(b)(2)(A)(i)—that is,
after the six-month window relevant to the debtor’s current monthly
income has closed (unless the debtor does not file a current-income
schedule), see §101(10A)(A)(i).
Cite as: 560 U. S. ____ (2010) 7
SCALIA, J., dissenting
once for all based on historical data, and another (the
enumerated expenses) that at least arguably depends on
estimations of the debtor’s future circumstances. The
statute thus requires the court to predict the difference
between two figures, each of which depends on the dura
tion of the commitment period, and one of which also turns
partly on facts besides historical data. In light of all this,
it seems to me not at all unusual to describe this process
as projection, not merely multiplication.
C
The Court’s remaining arguments about the statute’s
meaning are easily dispatched. A “mechanical” reading of
projected disposable income, it contends, renders superflu
ous the phrase “to be received in the applicable commit
ment period” in §1325(b)(1)(B). Ante, at 11. Not at all.
That phrase defines the period for which a debtor’s dis
posable income must be calculated (i.e., the period over
which the projection extends), and thus the amount the
debtor must ultimately pay his unsecured creditors.
Similarly insubstantial is the Court’s claim regarding
the requirement that the plan provide that the debtor’s
projected disposable income “will be applied to make
payments” toward unsecured creditors’ claims,
§1325(b)(1)(B). The Court says this requirement makes no
sense unless the debtor is actually able to pay an amount
equal to his projected disposable income. Ante, at 12. But
it makes no sense only if one assumes that the debtor is
entitled to confirmation in the first place; and that as
sumption is wrong. The requirement that the debtor pay
at least his projected disposable income is a prerequisite to
confirmation. The “will be applied” proviso does not re
quire a debtor to pay what he cannot; it simply withholds
Chapter 13 relief when he cannot pay.
The Court also argues that §1325(b)(1)’s directive to
determine projected disposable income “as of the effective
8 HAMILTON v. LANNING
SCALIA, J., dissenting
date of the plan” makes no sense if mere multiplication of
existing numbers is required. Ante, at 11–12. As I have
explained, however, “projected disposable income” may in
some cases require more than multiplication (as to ex
penses), and the estimations involved may vary from the
date of the plan’s filing until the date it takes effect.
Moreover, the provision also applies to the alternative
avenue to confirmation in §1325(b)(1)(A), which requires
that “the value of the property to be distributed under the
plan” to an unsecured creditor equals or exceeds the credi
tor’s claim. As to that requirement, the effective-date
requirement makes perfect sense.
Text aside, the Court also observes that Circuit practice
prior to the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (BAPCPA), 119 Stat. 23, aligns
with the atextual approach the Court adopts today. Ante,
at 8–10. That is unsurprising, since the prior version of
the relevant provisions was completely consistent with
that approach. The Court is correct that BAPCPA “did not
amend the term ‘projected disposable income,’ ” ante, at 10.
But it did amend the definition of that term. Before 2005,
§1325(b)(2) defined “disposable income” simply as “income
which is received by the debtor and which is not reasona
bly necessary to be expended” on the same basic types of
expenses excluded by the current statute. §1325(b)(2)
(2000 ed.). Nothing in that terse definition compelled a
court to rely exclusively on past data, let alone a specific 6
month period. But in BAPCPA—the same Act in which
Congress defined “current monthly income” in
§101(10A)(A)—Congress redefined “disposable income” in
§1325(b)(2) to incorporate that backward-looking defini
tion. See Pub. L. 109–8, §102(b), (h), 119 Stat. 32–34.
Given these significant changes, the fact that the Court’s
approach conforms with pre-BAPCPA practice not only
does not recommend it, see e.g., Pennsylvania Dept. of
Public Welfare v. Davenport, 495 U. S. 552, 563–564
Cite as: 560 U. S. ____ (2010) 9
SCALIA, J., dissenting
(1990), but renders it suspect.
II
Unable to assemble a compelling case based on what the
statute says, the Court falls back on the “senseless re
sults” it would produce—results the Court “do[es] not
think Congress intended.” Ante, at 14. Even if it were
true that a “mechanical” reading resulted in undesirable
outcomes, that would make no difference. Lewis v. Chi
cago, 560 U. S. ___, ___ (2010) (slip op., at 11). For even
assuming (though I do not believe it) that we could know
which results Congress thought it was achieving (or avoid
ing) apart from the only congressional expression of its
thoughts, the text, those results would be entirely irrele
vant to what the statute means.
In any event, the effects the Court fears are neither as
inevitable nor as “senseless” as the Court portrays. The
Court’s first concern is that if actual or anticipated
changes in the debtor’s earnings are ignored, then a debtor
whose income increases after the critical 6-month window
will not be required to pay all he can afford. Ante, at 14.
But as Lanning points out, Brief for Respondent 22–23,
Chapter 13 authorizes the Bankruptcy Court, at the re
quest of unsecured creditors, to modify the plan “[a]t any
time after confirmation” to “increase . . . the amount of
payments” on a class of claims or “reduce the time for such
payments.” §1329(a)(1)–(2) (2006 ed.). The Court offers
no explanation of why modification would not be available
in such instances, and sufficient to resolve the concern.
The Court also cringes at the prospect that a debtor
whose income suddenly declines after the 6-month window
or who, as in this case, receives a one-off windfall during
that window, will be barred from Chapter 13 relief be
cause he will be unable to devote his “disposable income”
(which turns on his prior earnings) to paying his unse
cured creditors going forward. Ante, at 14–15. At least for
10 HAMILTON v. LANNING
SCALIA, J., dissenting
debtors whose circumstances deteriorate after confirma
tion, however, the Code already provides an answer. Just
as a creditor can request an upward modification in light
of postconfirmation developments, so too can a debtor ask
for a downward adjustment. §1329(a). Cf. §1329(b)(1)
(requiring that modifications meet requirements of
§§1322(a)–(b), 1323(c), and 1325(a), but not §1325(b)).
Moreover, even apart from the availability of modifica
tion it requires little imagination to see why Congress
might want to withhold relief from debtors whose situa
tions have suddenly deteriorated (after or even toward the
end of the 6-month window), or who in the midst of dire
straits have been blessed (within the 6-month window) by
an influx of unusually high income. Bankruptcy protec
tion is not a birthright, and Congress could reasonably
conclude that those who have just hit the skids do not yet
need a reprieve from repaying their debts; perhaps they
will recover. And perhaps the debtor who has received a
one-time bonus will thereby be enabled to stay afloat.
How long to wait before throwing the debtor a lifeline is
inherently a policy choice. Congress confined the calcula
tion of current monthly income to a 6-month period (ordi
narily ending before the case is commenced), but it could
have picked 2 or 12 months (or a different end date) in
stead. Whatever the wisdom of the window it chose, we
should not assume it did not know what it was doing and
accordingly refuse to give effect to its words.
Even if one insists on making provision for such debtors,
the Court is wrong to write off four alternative strategies
the trustee suggests, Brief for Petitioner 50–54:
● Presumably some debtors whose income has only
recently been reduced, or who have just received a jolt that
causes a temporary uptick in their average income, can
delay filing a Chapter 13 petition until their “current
monthly income” catches up with their present circum
stances. The Court speculates that delay might “giv[e] the
Cite as: 560 U. S. ____ (2010) 11
SCALIA, J., dissenting
appearance of bad faith,” ante, at 15 (citing §1325(a)(7)),
but it offers no explanation of why that is so, and no au
thority supporting it.4
● Even if bad faith were a real worry, or if it were essen
tial to a debtor’s prospects that he invoke §362’s automatic
stay immediately, the debtor might ask the bankruptcy
court to excuse him from filing a statement of current
income, so that it determines his “currently monthly in
come” at a later date. See §101(10A)(A)(ii). The Court
dismisses this alternative, explaining that if the Code
requires a mechanical approach this solution would “im
properly undermine” it, and if the Code allows exceptions
for changed circumstances the solution is unnecessary.
Ante, at 16. The second premise is correct, but the first is
not. Congress does not pursue its purposes at all costs.
Rodriguez v. United States, 480 U. S. 522, 525–526 (1987)
(per curiam). Here it may have struck the very balance
the Court thinks critical by creating a fixed formula but
leaving leeway as to the time to which it applies.5
——————
4 Neither of the two Court of Appeals cases the Court cites—In re
Myers, 491 F. 3d 120, 125 (CA3 2007), and Neufeld v. Freeman, 794
F. 2d 149, 153 (CA4 1986)—involved a debtor’s delaying his petition
until his circumstances would permit the court to confirm a repayment
plan.
5 The Court observes that not every debtor will benefit from this ex
ception, ante, at 16, and n. 6, since §521(i)(3) provides that a bank
ruptcy court may not grant a request (which may be made after the
deadline for filing the current-income schedule) for an extension of
more than 45 days to file such a schedule. But the statute appears to
assume that a court may excuse the filing of such a schedule altogether:
A debtor is required to file a schedule in the first instance “unless the
court orders otherwise,” §521(a)(1)(B) (emphasis added). And
§101(10A)(A)(ii)’s provision of a method for calculating current monthly
income “if the debtor does not file the schedule of current income
required by section 521(a)(1)(B)(ii)” makes little sense unless a court
can excuse the failure to do so, since an unexcused failure to do so
would be a basis for dismissing the case, see §521(i). Allowing courts to
excuse such schedules does not render superfluous §521(i)(3)’s authori
12 HAMILTON v. LANNING
SCALIA, J., dissenting
● A debtor who learns after filing that he will be unable
to repay his full projected disposable income might also be
able to dismiss his case and refile it later. §1307(b). The
Court worries that this alternative also might be deemed
abusive, again with no pertinent authority for the specula
tion.6 Its concern is based primarily on its belief that this
“circumvents the statutory limits on a court’s ability to
shift the look-back period.” Ante, at 16–17. That belief is
mistaken, both because the Court exaggerates the statu
tory limitations on adjusting the look-back period, and
because, just as it does not defeat the disposable-income
formula’s rigidity to allow adjustments regarding the time
of determining that figure, it would not undermine the
limitations on adjustment applicable in a pending case to
allow the debtor to dismiss and refile.7
——————
zation for limited extensions, since that applies to extensions sought up
to 45 days after the filing deadline, whereas §521(a)(1)(B) seems to
apply only before the deadline.
6 The sole authority the Court supplies—a single Bankruptcy Court
decision predating BAPCPA—provides no support. See In re Glenn,
288 B. R. 516, 519–521 (Bkrtcy. Ct. ED Tenn. 2002). Although ac
knowledging that “[m]ultiple filings by a debtor are not, in and of
themselves, improper,” the court did note that “whether this is the first
or subsequent filin[g]” by the debtor is one among the “totality of the
circumstances” to be considered in a good-faith analysis. Id., at 520
(internal quotation marks omitted). The debtor in the case at hand had
filed three previous Chapter 13 petitions, “each on the eve of a sched
uled foreclosure,” and according to the court “never had any intention of
following through with any of the Chapter 13 cases,” but had used the
bankruptcy process “to hold [his creditor] hostage, while remaining in
his residence without paying for it.” Id., at 520–521.
7 The Court also notes that the Code precludes a debtor who has had
a case pending in the last 180 days from refiling if his prior case was
dismissed because he willfully failed to obey the court’s orders or to
appear before the court, §109(g)(1), or if he voluntarily dismissed the
prior suit “following the filing of a request for relief from the automatic
stay” under §362, §109(g)(2). Ante, at 17, n. 7. But the Court does not
explain why these barriers have any bearing on whether refiling for
bankruptcy would be abusive when the barriers do not apply.
Cite as: 560 U. S. ____ (2010) 13
SCALIA, J., dissenting
● A debtor unable to pursue any of these avenues to
Chapter 13 might still seek relief under Chapter 7. The
Court declares this cold comfort, noting that some debt
ors—including Lanning—will have incomes too high to
qualify for Chapter 7. Ante, at 17–18. Some such debtors,
however, may be able to show “special circumstances,”
§707(b)(2)(B), and still take advantage of Chapter 7. Aside
from noting the absence of authority on the issue, the
Court’s answer is unsatisfyingly circular: It notes that the
special-circumstances exception is available only if the
debtor has “no reasonable alternative,” §707(b)(2)(B)(i),
which will not be true after today given the Court’s hold
ing that bankruptcy courts can consider changes in a
debtor’s income. As for those who cannot establish special
circumstances, it is hard to understand why there is cause
for concern. Congress has evidently concluded that such
debtors do not need the last-ditch relief of liquidation, and
that they are not suitable candidates for repaying their
debts (at least in part) under Chapter 13’s protective
umbrella. We have neither reason nor warrant to second
guess either determination.
* * *
Underlying the Court’s interpretation is an understand
able urge: Sometimes the best reading of a text yields
results that one thinks must be a mistake, and bending
that reading just a little bit will allow all the pieces to fit
together. But taking liberties with text in light of outcome
makes sense only if we assume that we know better than
Congress which outcomes are mistaken. And by refusing
to hold that Congress meant what it said, but see Con
necticut Nat. Bank v. Germain, 503 U. S. 249, 253–254
(1992), we deprive it of the ability to say what it means in
the future. It may be that no interpretation of
§1325(b)(1)(B) is entirely satisfying. But it is in the hard
cases, even more than the easy ones, that we should faith
14 HAMILTON v. LANNING
SCALIA, J., dissenting
fully apply our settled interpretive principles, and trust
that Congress will correct the law if what it previously
prescribed is wrong.
I respectfully dissent.