United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-1541
                                 ___________

In Re: Eugene Wayne Koch,             *
        Debra Marie Nelson-Koch,      *
                                      *
     Debtors.                         *
                                      *
--------------------------------
                                      *
Barbara G. Stuart, United             * Appeal from the United States
States Trustee,                       * District Court for the
                                      * District of South Dakota.
     Appellant,                       *
                                      *
     v.                               *
                                      *
Eugene Wayne Koch,                    *
Debra Marie Nelson-Koch,              *
                                      *
     Appellees.                       *
                                 ___________

                   Submitted:     November 20, 1996

                        Filed:    March 28, 1997
                                 ___________

Before BEAM, LAY, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     We again consider the relationship between two provisions added to
the Bankruptcy Code in 1984 -- the power to dismiss a Chapter 7 proceeding
if debtor's discharge would result in "substantial abuse," 11 U.S.C.
§ 707(b), and the requirement that Chapter 13 debtors repay unsecured
creditors with post-petition "disposable income," § 1325(b)(1)(B).   We have
previously held that a Chapter 7 debtor's ability to fund a Chapter 13 plan
"is the
primary factor to be considered in determining whether granting relief
would be substantial abuse."          In re Walton, 

, 984-85 (8th Cir.
1989) (quotation omitted).            In this case, the issue is whether post-
petition worker's compensation benefits that are exempt under state law
should       be   included   as   Chapter   13    disposable   income    in   making   this
substantial abuse determination.            Concluding that this would violate the
exemption, the bankruptcy court denied the United States Trustee's motion
to dismiss this Chapter 7 proceeding.              The district court affirmed.        See
In re Koch, 

(D.S.D. 1995).             The Trustee appeals.      We reverse.



                                             I.


        Eugene and Debra Koch ("Debtors") filed a joint Chapter 7 petition
listing $30,175 in unsecured debts, primarily consumer credit card debts
and medical bills.           Debtors have monthly expenses of $1,841 and monthly
revenues of $3,284, including Mr. Koch's lifetime worker's compensation
benefits of $1,343 per month, awarded in lieu of a lump-sum payment in
1985.       Those benefits are "exempt from all claims of creditors" under South
Dakota law and therefore are exempt from the claims of Chapter 7 creditors.
See 11 U.S.C. § 522(b)(2)(A); S.D.C.L. § 62-4-42.1


        This      appeal   concerns   the   Trustee's   motion   to     dismiss   Debtors'
petition as a substantial abuse of Chapter 7.              The Trustee reasons that,
if Debtors petitioned for Chapter 13 relief, their disposable income,
including Mr. Koch's worker's compensation benefits, would be $1,443 per
month.       That would permit them to repay $167% of their unsecured debt
within three years under a Chapter 13 plan, an




        1
      However, this exempt property is part of Debtors' bankruptcy
estate. See In re Yonikus, 

, 870 (7th Cir. 1993).

                                             -2-
ability to repay creditors that makes this petition a "substantial abuse"
of Chapter 7.     See Fonder v. U.S., 

, 1000 (8th Cir. 1992)
(ability to pay 89% in three years is substantial abuse); United States
Trustee v. Harris, 

, 77 (8th Cir. 1992) (ability to pay 156% is
substantial abuse); 

(ability to pay more than two
thirds is substantial abuse).


      Debtors respond that Mr. Koch's worker's compensation payments may
not be included in calculating their hypothetical Chapter 13 disposable
income.   Excluding those payments leaves Debtors less than $100 of Chapter
13   disposable   income   each    month,   an   amount   inadequate   to   repay   a
substantial portion of their unsecured debts over the three-year life of
a Chapter 13 plan.     Thus, this petition is not a substantial abuse of
Chapter 7.   The bankruptcy court agreed, concluding that exempt income,
such as Mr. Koch's worker's compensation benefits, is not disposable income
for purposes of Chapter 13.       The district court affirmed on the ground that
our decision in In re Berger, 

(8th Cir. 1995), controls this
issue.


                                        II.


      Although the parties ignored this jurisdictional issue, we must first
decide whether the district court’s order is final for purposes of 28
U.S.C. § 158(d).      We have traditionally considered three factors in
determining when an order in a bankruptcy case is final:           "the extent to
which (1) the order leaves the bankruptcy court nothing to do but execute
the order; (2) the extent to which delay in obtaining review would prevent
the aggrieved party from obtaining effective relief; (3) the extent to
which a later reversal on that issue would require recommencement of the
entire proceeding."    In re Olson, 

, 1109 (8th Cir. 1984)




                                        -3-
(citations omitted).         Two of these factors weigh heavily in favor of
appealability in this case.           First, deferring appellate review of the
substantial abuse question while Debtors expend their inadequate resources
in what turns out to be a futile Chapter 7 liquidation would certainly
prevent the aggrieved party -- the trustee acting on behalf of creditors --
from obtaining effective relief.        Second, a later reversal would also force
Debtors to recommence the entire proceeding under Chapter 13 to receive
bankruptcy protection.         Like the two other circuits to consider the
question,    we   conclude    that    orders    denying    §   707(b)   dismissals      are
appealable under §158(d).      In re Kelly, 

, 911 (9th Cir. 1988);
Matter of Christian, 

, 48 (3d Cir. 1986).


       Admittedly,   a     district   court    order   remanding    the   case    to    the
bankruptcy court for further proceedings is not normally appealable.                   See,
e.g., In re Riggsby, 

, 1155 (7th Cir. 1984).                        However,
“finality for bankruptcy purposes is a complex subject . . . [and courts
deciding appealability questions] must take into account the peculiar needs
of the bankruptcy process."       In re Huebner, 

, 1223 (8th Cir.
1993); see also Cochrane v. Vaquero Invs., 

, 203-04 (8th Cir.
1996).   For instance, contrary to this general rule, nearly every circuit
has held that an order granting or denying an exemption is final for
purposes of § 158(d).        See 

(gathering cases).
Exemption orders are appealable because they "can and frequently do
determine the entire course of the bankruptcy proceeding."                   Matter of
Barker, 

, 193-94 (7th Cir. 1985).             In other words, it does not
serve the needs of the bankruptcy process for the debtor and creditors to
complete    the   entire    process   under    a   mistaken    assumption   as    to    the
allocation of the "substantive rights" represented by exemptions.                 

                                          -4-
     Orders granting or denying dismissal for substantial abuse have an
even more profound effect on the process.       If they cannot be appealed,
bankruptcy proceedings must "be completed before it can be determined
whether they were proper in the first place."    

.
Requiring trustees to complete Chapter 7 proceedings before appealing
denial of their § 707(b) motions wastes debtor resources that should be
used to pay creditors, and forces trustees and bankruptcy courts to expend
their scare institutional resources on abusive Chapter 7 petitioners.
Thus, "the policies of judicial efficiency and finality are best served"
by allowing prompt appellate review of § 707(b) denials.     

.     It would indeed be ironic if parties could appeal each district
court order granting or denying exempt status to a particular piece of
property, only to find out at the conclusion of the bankruptcy process that
these decisions were irrelevant because § 707(b) precludes any Chapter 7
relief.


                                    III.


     Congress did not define "substantial abuse" in § 707(b).            The
                                                 2
legislative history is meager and contradictory.     In general, § 707(b) was
intended to promote fairness to creditors, and thereby increase the flow
of consumer credit, by "stemming the use of Chapter 7 relief by unneedy
debtors."    

.   In construing this term, Walton has
resolved two primary issues.   First, the substantial abuse inquiry focuses
primarily on Debtors' ability to pay; indeed, substantial ability to pay
creditors standing alone warrants dismissal of a Chapter 7 petition for
substantial abuse.    Second, ability to pay for § 707(b) purposes is




     2
      Good discussions of the legislative history may be found in
In re Grant, 

, 389-92 (Bankr. N.D. Ohio 1985), and in In
re 

.

                                     -5-
measured by evaluating Debtors' financial condition in a hypothetical
Chapter 13 proceeding.3


     Chapter 13 gives "an individual with regular income" the opportunity
to preserve pre-petition assets through a three- to five- year plan funded
primarily with that income.     See 11 U.S.C. § 109(e).   Prior to the 1984
amendments, a Chapter 13 plan could be confirmed if it paid unsecured
creditors "not less than the amount" they would be paid in a Chapter 7
liquidation.    § 1325(a)(4).     Under that version of § 1325, courts
consistently held that revenues from exempt sources, such as disability and
social security benefits, are "income" that may be used to fund a Chapter
13 plan.   That ruling ensures that "social welfare recipients [are not]
denied the benefits of Chapter 13 plans."   Regan v. Ross, 

, 85
(2d. Cir. 1982), citing H.R. Rep. No. 595, 95th Cong., 2d Sess. 312 (1978),
reprinted in 1978 U.S.C.C.A.N. 5963, 6296; see In re Howell, 

,
106 (Bankr. M.D. Tenn. 1980).




     3
      The Trustee urges us to divorce the substantial abuse
analysis from Chapter 13 and focus on Debtors' absolute "ability to
pay." That would put all exemptions otherwise allowed in Chapter
7 at issue under § 707(b). For example, under this approach, if a
debtor's exempt homestead exceeded her unsecured debts, the court
could dismiss her Chapter 7 petition as a substantial abuse because
she has the ability to sell the house and pay creditors with its
proceeds. In a Chapter 13 proceeding, on the other hand, debtor's
pre-petition assets retain whatever exempt status they may have, so
the issue is limited to whether income received from exempt sources
during the three-year life of a hypothetical Chapter 13 plan is
"disposable income" and therefore evidence of substantial abuse.
The Trustee cites no authority for her contrary approach, and we
reject it. This conclusion is not at odds with our decision in

.        In Fonder we held that debtor's
ineligibility for Chapter 13 relief did not preclude dismissal of
a Chapter 7 petition under § 707(b).       But we did not divorce
"ability to pay" from Walton's hypothetical Chapter 13 analysis.

                                    -6-
     In the 1984 amendments, Congress imposed a new limitation on Chapter
13 relief -- if an unsecured creditor or trustee objects to confirmation,
the Chapter 13 plan must "provide[] that all of the debtor's projected
disposable income to be received [during the three-year plan] will be
applied to make payments under the plan."             § 1325(b)(1)(B).     The statute
defines "disposable income" as income received by the debtor that is not
reasonably necessary to support the debtor, the debtor's dependents, or the
debtor's business.      § 1325(b)(2).


     Under    the   amended     statute,     the   exempt    income   question   becomes
something of a two-edged sword for prospective Chapter 13 debtors.                  They
may need to include exempt income to qualify as "an individual with regular
income."   But exempt income not reasonably needed for support then becomes
"disposable   income"    that    must   be    paid   to     creditors.    Despite   this
additional implication, courts since 1984 have continued to hold that
revenues received from exempt sources during the life of a Chapter 13 plan
are "income," the disposable portion of which must be paid to unsecured
creditors if the plan is to be confirmed (or if a Chapter 13 discharge is
to be awarded, the issue that arises when unexpected disposable income is
received after confirmation).       See In re Freeman, 

, 480-81 (6th
Cir. 1996) (tax refunds); In re Hagel, 

, 796-97 (9th Cir.
B.A.P. 1995) (social security benefits); In re Minor, 

, 579
(Bankr. E.D. Tenn. 1995) (worker's compensation benefits);                  Watters v.
McRoberts, 

, 147 (S.D. Ill. 1994) (personal injury recovery);
In re Schnabel, 

, 815-16 (Bankr. N.D. Ill. 1993) (social
security and pension benefits); In re Sassower, 

, 960 (Bankr.
S.D.N.Y. 1987) (pension, welfare, and unemployment benefits).




                                           -7-
     We agree with these decisions.        Chapter 13 contains no language
suggesting that exempt post-petition revenues are not Chapter 13 "income,"
and § 1325(b)(2) expressly defines "disposable income" to mean income not
needed for debtor's support.   Exemptions are less significant in protecting
Chapter 13 debtors.    In a Chapter 7 liquidation, exemptions ensure "that
even if his creditors levy on all of his nonexempt property, the debtor
will not be left destitute and a public charge."      

, quoting H.R. Rep. No. 95-595, 1978 U.S.C.C.A.N. at 6087.   In a Chapter
13 proceeding, on the other hand, debtor repays unsecured creditors
primarily with post-petition "disposable income," income that is not
reasonably necessary for support.    Debtor's fresh start is not endangered
by a requirement that income received during the life of the plan from
otherwise exempt sources be included in the calculation of disposable
income.


     The district court rejected these cases as contrary to our decision
in In re Berger.    In Berger, the bankruptcy court held that life insurance
proceeds received during the life of a Chapter 12 plan were not "income"
under Chapter 12.   Based upon that conclusion, which was not challenged on

, we held that an asset purchased with those proceeds
was not disposable income under § 1225(b)(1)(b), the Chapter 12 analog to
§ 1325(b).   Thus, Berger did not consider the critical issue in this case
-- whether exempt revenues are "income" under Chapter 12 or Chapter 13 --
and Berger is not controlling.4
     A recent decision not cited by the parties also rejected this line
of authority, but on the ground that treating exempt income as




     4
      Other decisions in this circuit conflict with the bankruptcy
court's unappealed ruling in Berger. See In re Martin, 

, 966 (Bankr. N.D. Iowa 1991), followed in Agribank, FCB v.
Honey, 

, 544 (W.D. Mo. 1994).

                                     -8-
Chapter 13 disposable income violates the mandate in § 522(c) that exempt
property "is not liable" for any pre-petition debt.       In re Ferretti. 

, 800 (Bankr. S.D. Fla. 1996).        We disagree.   Including exempt
income in disposable income does not make exempt property "liable" to
Chapter 13 unsecured creditors.     Chapter 13 relief is at the option of the
debtor.    See § 1307(a), (b).   The disposable income limitation in § 1325(b)
simply defines the terms upon which Congress has made the benefits of
Chapter 13 available.


        Finally, Debtors suggest that Mr. Koch should not be penalized for
taking his worker's compensation benefits as a lifelong stream of periodic
payments, rather than as a lump sum.          The short answer is that the
bankruptcy court must deal with Debtors' financial affairs as it finds
them.    Moreover, it may not be correct to assume that the portion of a pre-
petition lump sum benefit that is allocable to lost earnings during the
life of a Chapter 13 plan will escape inclusion in the debtor's disposable
income.


                                      III.


        Having determined that Debtors' worker's compensation benefits would
be included in "disposable income" if they sought Chapter 13 relief, the
only remaining question is whether such benefits should nonetheless be
excluded from the hypothetical Chapter 13 analysis that underlies a
substantial abuse determination under Walton.      Debtors suggest two policy
considerations that give us pause.       First, they argue that, even if Mr.
Koch could include his worker's compensation benefits in a voluntary
Chapter 13 plan, it violates the South Dakota exemption to forcibly include
these benefits in a hypothetical Chapter 13 analysis under § 707(b).
Second, on a more practical level, Debtors suggest that § 707(b) dismissals
in cases such as this will leave debtors no avenue of bankruptcy relief,




                                      -9-
because they have no non-exempt assets worth protecting in a Chapter 13
proceeding.


     On balance, we conclude these arguments are unpersuasive.       Chapter
13 relief remains wholly voluntary, and debtors whose Chapter 7 petitions
are dismissed for substantial abuse are not compelled to file for Chapter
13 relief.    Congress is free to limit Chapter 7 protection to truly needy
debtors who cannot fund a Chapter 13 plan with exempt and non-exempt
income.   We conclude that Congress did just that when it enacted § 707(b)
and § 1325(b) in the 1984 amendments.      As the court said in In re Morse,

, 656 (Bankr. E.D. Wash. 1994):


     [Section] 1325(b) balances the interests of debtors and
     creditors by independently limiting a debtor's ability to
     shelter income from exempt sources away from his creditors when
     he otherwise has sufficient income to meet his basic needs.
     Section 707(b), by incorporating a disposable income test,
     similarly balances the interests of debtors and creditors by
     empowering courts to dismiss cases filed by non-needy debtors
     for substantial abuse "if a debtor can meet his debts without
     difficulty as they come due." S.Rep. No. 65, 98th Cong., 1st
     Sess. 53, 54 (1983). . . . While the court does not dispute
     that debtors are entitled to any exemption which they may
     validly claim, the ability to claim an exemption is an
     independent issue from whether debtors have the ability to
     repay their debts.


                                     IV.


     The final decision on a § 707(b) motion to dismiss should be made
initially by the bankruptcy court.         Accordingly, the judgment of the
district court is reversed and the case is remanded with instructions to
remand to the bankruptcy court for further consideration of the Trustee's
motion consistent with this opinion.




                                    -10-
LAY, Circuit Judge, dissenting.


     I respectfully dissent.      Because there is no final order of the
district court we lack jurisdiction to address the merits of this appeal.


     The district court affirmed the bankruptcy court's denial of the
trustee's motion to dismiss and remanded the case for further proceedings.
The order is interlocutory and not appealable under     28 U.S.C. § 158(d).
The parties did not seek certification from the district court under 28
U.S.C. § 1292.     It should also be clear that the order is not appealable
under the collateral order doctrine.   If necessary, the issue involved here
will remain reviewable at the conclusion of the case.


     The majority justifies an exception to the final order doctrine
because the parties may expend resources in what might later become a
"futile" effort.    If this were the proper test, every interlocutory ruling
by a district court that an appellate court might regard as erroneous could
be immediately appealed.     Thus, if an appellate court would believe the
district court wrongly denied a Rule 12(b)(6) motion, the court could
entertain the appeal on the basis of futility and practicality.     Such an
approach ignores our disfavor of piecemeal appeals.
     By relying on In re Christian, 

(3d Cir. 1986), the
majority rejects the final order rule of this circuit and adopts an
approach rejected by most other circuits.   In Christian, the Third Circuit
considered whether it had jurisdiction to consider a creditor's appeal from
a district court order that affirmed the bankruptcy court's denial of the
creditors' motion to dismiss the debtor's bankruptcy petition under 11
U.S.C. § 707(b).    The court concluded it had jurisdiction, reasoning that
"[i]f the order . . .




                                    -11-
is not now appealable the entire bankruptcy proceedings must be completed
before it can be determined whether they were proper in the first place."

     The Christian court expressly relied on In re Marin Motor Oil, Inc.,

(3d Cir. 1982).    In Marin, the Third Circuit held that "when
the bankruptcy court issues what is indisputably a final order, and the
district court issues an order affirming or reversing, the district court's
order is also a final order."      

  The Marin court therefore
concluded it had jurisdiction to review a district court's order that
reversed the bankruptcy court's denial of the motion of the creditors
committee to intervene.   

In re Riggsby, the Seventh Circuit analyzed the risk and
harm of piecemeal appeals, and rejected Marin, adopting the contrary "very
sensibl[e]" holding of other circuits "that remands by the district court
to the bankruptcy judge are not appealable . . . where the bankruptcy judge
[is the decision-maker]."      

, 1155 (7th Cir. 1984).   Judge
Posner in Riggsby appropriately noted this court's decision in In re
Hansen, 

(8th Cir. 1983) (per curiam), where we held we had no
jurisdiction to consider an appeal of the district court's decision that
reversed the bankruptcy court's dismissal of a secured creditor's complaint
against the debtor.   See also In re Vekco, Inc., 

(8th Cir.
1986) (holding the district court's decision was not a final, appealable
decision in a Chapter 11 case where the decision reversed the bankruptcy
court's order that had disposed of the case).


     The Fifth Circuit considered the question of a remand order's
appealability in In re Greene County Hosp., 

(5th Cir. 1988).
That court rejected Marin's rationale and followed Riggsby




                                    -12-
                                     12
and held that a district court's order affirming the bankruptcy court's
conclusion that it had subject matter jurisdiction was not a final order.

       Other circuits have also rejected the Third Circuit approach that the
majority adopts today.         Compare In re St. Charles Preservation Investors,
Ltd., 

, 729 (D.C. Cir. 1990) (adopting Riggsby and holding that
"a    district    court   order      remanding    a    case    to    bankruptcy   court    for
significant further proceedings is not final in the 28 U.S.C. § 158(d)
context"); In re Dixie Broadcasting, Inc., 

, 1028 (11th Cir.
1989) (questioning Christian and Marin and noting that "[t]his Circuit has
consistently held that a district court order remanding the case to the
bankruptcy court is not a final decision for purposes of appeal."); In re
Gould & Eberhardt Gear Machinery Corp., 

, 29 & n.2 (expressly
rejecting Marin and adopting Riggsby to hold that "when a district court
remands    a     matter   to   the     bankruptcy      court   for    significant   further
proceedings, there is no final order for the purposes of § 158(d) and the
court of appeals lacks jurisdiction"); Bowers v. Connecticut Nat'l Bank,

, 1022 (2d Cir. 1988) (following Riggsby and finding no
appellate jurisdiction); and In re Commercial Contractors, Inc., 

, 1375 (10th Cir. 1985) (rejecting Marin and adopting Riggsby in
concluding the district court's order reversing the bankruptcy court and
remanding for further proceedings is not a final, appealable order under
§ 158(d)); with In re Carolina Motor Express, Inc., 

, 108 n.1
(4th Cir. 1991) (adopting Marin approach), rev'd on other grounds sub nom.,
Reiter v. Cooper, 

(1993); In re Sambo's Restaurants, Inc., 

, 814-15 (9th Cir. 1985) (same); and cf., In re Gardner, 

,   90-92    (6th   Cir.     1987)   (finding       jurisdiction     after   opining    "the
particular circumstance[]" of addressing a purely legal question




                                            -13-
                                             13
that would determine the outcome removed the case from the Riggsby line of
cases).


     We should adhere to the reasoned approach of most of our sister
circuits and recognize that a district court's order remanding a case to
the bankruptcy court for further proceedings beyond mere ministerial duties
does not constitute a final order.5     There is nothing final in the district
court's returning the case to the bankruptcy court for extensive further
proceedings, and at least we should not in reaching a contrary conclusion
adopt a standard reasonably denounced by the majority of circuits.        Nor
does this case pose an issue whose resolution will answer what actually
belongs in a bankruptcy estate, since the ultimate question raised to us
is whether the Debtors' worker's compensation benefits should "be excluded
from the hypothetical Chapter 13 analysis that underlies a substantial
abuse determination."   Ante, at 10.    In short, the question is only whether
the Debtors' worker's compensation benefits would preclude his use of
Chapter 7,6 and in order for us to consider this question on appeal, as




     5
      The majority today quite correctly declines to rely on In re
Bestmann, 

(8th Cir. 1983).         There, this court
discussed Marin approvingly in finding appellate jurisdiction over
the district court's refusal to consider an appeal from the
bankruptcy court. 

But the district court there had
erroneously concluded that it lacked subject matter jurisdiction to
consider the appeal. In Bestmann we expressly noted that were we
to decline to exercise appellate jurisdiction, the only issue
before us then--whether the district court had jurisdiction to
consider the appeal--would never receive appellate review. 

not be read any broader than its limited holding,
especially in light of Hansen and Vekco. See supra at 2-3.
     6
      In this regard the present case is distinguished from In re
Huebner, 

(8th Cir. 1993). There, we held that an
order denying a debtor's claimed exemption is final under § 158(d),
after recognizing the district court's order would actually place
the purportedly exempt assets into the bankruptcy estate. I note,
however, that even in Huebner we cautioned that we were not
abandoning "our prior decisions holding that district court orders
remanding to the bankruptcy court are seldom final." 

Today's decision tosses that caution aside.

                                       -14-
                                        14
Judge Goldberg put it, "the game must really be over." Greene County

.


     Until today, that we may deem it feasible or practical to review a
district court order has not granted us appellate jurisdiction.                   By
embracing the Third Circuit's oft criticized approach, albeit with good
intentions of convenience and economy, we now inevitably invite the
inconvenient and costly piecemeal appeals our insistence on finality has
heretofore proscribed.


     Certainly in some cases appellate judges may feel it better to review
the matter and get it over with.      See e.g., In re Kelly, 

, 911
(9th Cir. 1988) (concluding that because "legal issues predominate" the
questions raised on appeal, "judicial efficiency and finality are best
served" by exercising appellate jurisdiction).         This fosters only passing
convenience and is far from the law.        If the courts do not follow reasoned
precedent governing basic jurisdictional principles, we can not expect
lawyers   and   litigants   to   do   so.       We   should   strictly   apply   our
jurisdictional rules and dismiss the appeal for want of jurisdiction.
Today's decision is most unfortunate.


     A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -15-
                                        15