# 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 t o the Bankruptcy Code in 1984 -- the power to dism iss a Chapter 7 proceeding if deb tor's discharge would result in "substantial abuse," 11 U.S.C

. § 707(b ), and the requirement that Chapter 13 debtors repay unsecure d creditors with post-petition "disposable income," § 1325(b)(1)(B). We hav e previously held that a Chapter 7 debtor's ability to fund a Chapter 13 pla n "is the

### However, this ex empt property is part of Debtors' bankruptcy 1 

### estate. See In re Yonikus , 996 F.2d 866, 870 (7th Cir. 1993).
-2- primar yfactor to be considered in determining whether granting relie f would be substantial abuse." In re Walton , 866 F.2d 981, 984-85 (8th Cir. 1989 ) (quotation omitted). In this case, the issue is whether post

petiti on worker's compensation benefits that are exempt under state la w shoul d be included as Chapter 13 disposable income in making thi s substantial abuse determination. Concluding that this would violate the exemption, the bankru ptcy court denied the United States Trustee's motion to dismiss this Chapter 7 proceeding. The district court affirmed. See In re Koch , 187 B.R. 664 (D.S.D. 1995). The Tru stee appeals. We reverse.

I.

Eugene a nd Debra Koch ("Debtors") filed a joint Chapter 7 petitio n listing $30,175 in unsecured debts, primarily consumer credit card debts and medical bills. Debtors have monthly expenses of $1,841 and monthl y
revenues of $3,284, including Mr. Koch's lifetime worker's compensatio n benefits of $1,343 per month, awarded in lieu of a lump-sum payment i n 1985. Those benefits are "exempt from all claims of creditors" under Sout h 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 Deb tors petitioned for Chapter 13 relief, their disposable income , including Mr. Koch's worker's compensation benefits, would be $1,443 per
mon th. That would permit them to repay $167% of their unsecured deb t within three years under a Chapter 13 plan, an

### -3-

ability to repay cred itors that makes this petition a "substantial abuse" of Chapter 7. See Fonder v. U.S. , 974 F.2d 996, 1000 (8th Cir. 1992 ) (abilityto pay 89% in three years is substantial abuse); United State s Trustee v. Harris , 960 F.2d 74, 77 (8th Cir. 199 2) (ability to pay 156% is substantial abuse); W alton , 866 F.2d at 985 (ability to pay more than two thirds is substantial abuse).

De btors respond that Mr. Koch's worker's compensation payments ma y not be included in calculating their hypothetical Chapter 13 disposabl e 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 o f Cha pter 7. The bankruptcy court agreed, concluding that exempt income , such as Mr. Koch's worker's compensation benefits, is not disposable incom e for purposes of Chapter 13. The district court affirmed on the ground tha t
our decision in In re Berger , 61 F.3d 624 (8th Cir. 1995), controls this issue.

II.

Although the parties ignored this jurisdictional issue, we must first decide whe ther the district court’s order is final for purposes of 2 8 U.S.C. § 158(d). We have traditionally considered three factors i n determining when an order in a bankruptcy case is final: "the extent to which (1) the order l eaves the bankruptcy court nothing to do but execute the order; (2) the extent to which delay in obta ining review would prevent the aggrieved party from obtaining effective relief; (3) the extent t o which a later reversal on that issue would require recommencement of the entire proceeding." In re Olson , 730 F.2d 1109, 1109 (8th Cir. 1984)

### -4-

(cit ations omitted). Two of these factors weigh heavily in favor o f appeala bilityin this case. First, deferring appellate review of th e substantial abuse question while Debtors expend their inadequate resources in what turns out to be a futile Chapter 7 liquidation would certainl y prevent the aggrieved party -- the trustee acting on behalf of creditors -

- from obtaining effective relief. Second, a later reversal would also forc e Deb tors to recommence the entire proceeding under Chapter 13 to receiv e bankruptcy protection. Like the two other circuits to consider th e questi on, we conclude that orders denying § 707(b) dismissals ar e appealable under §158(d). In re Kelly , 841 F.2d908, 911 (9th Cir. 1988); Matter of Christian , 804 F.2d 46, 48 (3d Cir. 1986).

Admittedly, a district court order remanding the case to th e bankruptcy court for further proceedings is not normally appealable. See, e.g. , In re Riggsby , 745 F.2d 1153, 1155 (7th Cir. 1984). However , “finality for bankruptcy purposes is a complex subject . . . [and courts deciding appealability questions] must take into account the peculiar need s of the bankruptcy pro cess." In re Huebner , 986 F.2d 1222, 1223 (8th Cir. 1993); see also Cochrane v. Vaquero Invs. , 76 F.3d 200, 203-04 (8th Cir. 1996). For instance, contrary to this general rule, nearly every circuit has he ld that an order granting or denying an exemption is final fo r purposes of § 158(d). See Huebner , 986 F.2d at 1223 (gathering cases)

. Exempt ion orders are appealable because they "can and frequently d o deter mine the entire course of the bankruptcy proceeding." Matter o f Barker , 768 F.2d 191, 193-94 (7th Cir. 1985). I n other words, it does not serve the needs of th e bankruptcy process for the debtor and creditors to compl ete the entire process under a mistaken assumption as to th e allocation of the "su bstantive rights" represented by exemptions. Id. at 194.

### G ood discussions of the legislative history may be found i n 2 

### In re Grant , 51 B.R. 385, 389-92 (Bankr. N.D. Ohio 1985), an d in In re Kelly , 841 F.2d at 914.
-5- Orders granting or denying dismissal for substantial abuse have a n
even more profound effect on the process. If they cannot be appealed , bankru ptcy proceedings must "be completed before it can be determine d whether they were pro per in the first place." Christian , 804 F.2d at 48. Requiri ng trustees to complete Chapter 7 proceedings before appealin g denial of their § 707(b) motions wastes debtor resources that should b e used to pay creditors, and forces trustees and b ankruptcy courts to expend their s care institutional resources on abusive Chapter 7 petitioners

. Thus, "the policies of judicial efficiency and finality are best served" by allowing prompt ap pellate review of § 707(b) denials. Kelly , 841 F.2d at 911. It would indeed be ironic if parties could appeal each district court order granting or denying exempt status to a particular piece o f property, only to find out at the conclusion of the bankruptcy process tha t these decisions were irrelevant because § 707(b) precludes any Chapter 7 relief.

III.

Con gress did not define "substantial abuse" in § 707(b). Th e legislative history is meager and contradictory. In general, § 707(b) was 2 intended to promote fairness to creditors, and thereby increase the flow of consum er credit, by "stemming the use of Chapter 7 relief by unneed y debtors." Walton , 866 F.2d at 983. In construing this term, Walton has resolved two primary issues. First, the substan tial abuse inquiry focuses primarily on Debtors' ability to pay; indeed, substantial ability to pay

cre ditors standing alone warrants dismissal of a Chapter 7 petition fo r substantial abuse. Second, ability to pay for § 707(b) purposes is

### The Trustee urges us to divorce the substantial abus e 3 

### analysis from Chapter 13 and focus on Debtors' absolute "abi lity to pay." That would put all exemptions otherwise allowed in Chapter 7 at issue under § 707(b). Fo r 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 ha s the ability to sell the house and pay creditors with it s proceeds. In a Chapter 13 pro ceeding, on the other hand, debtor's pre-petition assets retain whatever exempt status they may h ave, so the issue is limited to whether income received from exempt sources during the three-year life of a hypothetical Chapter 13 plan i s "d isposable income" and therefore evidence of substantial abuse

. The Trustee cites no authority for her contrary approach, and w e reject it. This conclusion is not at odds with our decision i n Fonder , 9 74 F.2d at 999. In Fonder we held that debtor' s ineligibility for Chapter 13 relief did not preclude dismissal of a Chap ter 7 petition under § 707(b). But we did not divorc e "ability to pay" from Walton 's hypothetical Chapter 13 analysis.
-6- measure d by evaluating Debtors' financial condition in a hypothetica l 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 prima rily with that income. See 11 U.S.C. § 109(e). Prior to the 198 4 amendments , a Chapter 13 plan could be confirmed if it paid unsecure d creditor s "not less than the amount" they would be paid in a Chapter 7 liquidat ion. § 1325(a)(4). Under that version of § 1325, court s consistently held that revenues from exempt sources, such as disability an d social security benef its, are "income" that may be used to fund a Chapter 13 plan. That ruling ensures that "social welfare recipients [are not ] denied the benefits o f Chapter 13 plans." Regan v. Ross , 691 F.2d 81, 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 , 4 B.R. 102, 106 (Bankr. M.D. Tenn. 1980).

### -7- In the 1984 amendments, Congress imp osed a new limitation on Chapter 13 relief -- if an un secured creditor or trustee objects to confirmation, the C hapter 13 plan must "provide[] that all of the debtor's projecte d disposa ble income to be received [during the three-year plan] will b e 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 th e debtor's business. § 1325(b)(2).

Under the amended statute, the exempt income question become s something of a two-edged sword for prospective Chapter 13 debtors. They may need to include exempt income to qualify as "an individual with regula r income." But exempt income not reasonably neede d for support then becomes "disp osable income" that must be paid to creditors. Despite thi s additi onal implication, courts since 1984 have continued to hold tha t revenues received from exempt sources during the life of a Chapter 13 plan
are "income," the disposable portion of which must be paid to unsecure d creditors if the planis to be confirmed (or if a Chapter 13 discharge is to be awarded, the is sue that arises when unexpected disposable income is received after confirmation). See In re Freeman , 86 F.3d 478, 480-81 (6th Cir

. 1996) (tax refunds); In re Hagel , 184 B.R. 793, 796-97 (9th Cir

. B.A.P. 1995) (social security benefits); In re Minor , 177 B.R. 576, 57 9 (Bankr

. E.D. Tenn. 1995) (worker's compensation benefits); Watters v
. McRoberts , 167 B.R. 1 46, 147 (S.D. Ill. 1994) (personal injury recovery); In r e Schnabel , 153 B.R. 809, 815-16 (Bankr. N.D. Ill. 1993) (socia l securityand pension benefits); In re Sassower , 76 B.R. 957, 960 (Bankr. S.D.N.Y. 1987) (pension, welfare, and unemployment benefits).

### Other decisions in this circuit conflict with the bankruptcy 4 

### court's unappealed ruling in Berger
. See In re Martin , 130 B.R

. 951, 966 (Bankr. N.D. Iowa 1991), followed in Agribank, FCB v

. Honey , 167 B.R. 540, 544 (W.D. Mo. 1994).
-8- We agree with these decisions. Chapter 13 contains no languag e suggesting that exempt post-petition revenues ar e not Chapter 13 "income," and § 1325(b)(2) expr essly defines "disposable income" to mean income not needed for debtor's support. Exemptions are less significant in protectin g Chapter 13 debtors. In a Chapter 7 liquidation, exemptions ensure "that
even if h is creditors levy on all of his nonexempt property, the debto r will no t be left destitute and a public charge." Schnabel , 153 B.R. a t 817, quoting H.R. Rep. No. 95-595, 1978 U.S.C.C.A.N. at 6087. In a Chapte r 13 pro ceeding, on the other hand, debtor repays unsecured creditor s pr imarilywith post-petition "disposable income," income that is no t reasonably necessary for support. Debtor's fresh start is not endangered bya requirement that income received during the life of the plan fro m otherw ise exempt sources be included in the calculation of disposabl e income.

The distr ict court rejected these cases as contrary to our decision in In re Berger . In Berger , the bankruptcy cour t held that life insurance proceeds received during the life of a Chapter 12 plan were not "income" under Chapter 12. Based upon that conclusion, w hich was not challenged on appeal, 61 F.3d at 626, we held that an asset purchased with those proceed s was not disposable in come under § 1225(b)(1)(b), the Chapter 12 analog to § 1325(b). Thus, Ber ger did not consider the critical issue in this case -- whether exempt rev enues are "income" under Chapter 12 or Chapter 13 -- and Berger is not controlling. 4 A recen t decision not cited by the parties also rejected this lin e of authority, but on the ground that treating exempt income as

### -9-

Chapter 13 disposable income violates the mandate in § 522(c) that exempt property"is not liable" for any pre-petition debt. In re Ferretti . 203 B.R. 796, 800 (Bankr. S.D. Fla. 1996). We disagree. Including exemp t income in disposable income does not make exempt property "liable" t o Chapter 13 unsecured creditors. Chapter 13 reli ef is at the option of the debtor. See § 1307(a), (b). The disposable income limitation in § 1325(b ) simply def ines the terms upon which Congress has made the benefits o f Chapter 13 available.
Finally, Debtors suggest that Mr. Koch should not be penalized fo r taking his worker's compensation benefits as a l ifelong stream of periodic payments, ra ther than as a lump sum. The short answer is that th e bankruptcy court must deal with Debtors' financial affairs as it find s 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 th e life of a Chapter 13 plan will escape inclusion in the debtor's disposable income.

III.
Having determined that Debtors' work er's compensation benefits would be included in "disposable income" if they sought Chapter 13 relief, the only r emaining question is whether such benefits should nonetheless b e exclud ed from the hypothetical Chapter 13 analysis that underlies a substantial abuse det ermination under Walton . Debtors suggest two policy considera tions that give us pause. First, they argue that, even if Mr

. Koch c ould include his worker's compensation benefits in a voluntar y Chapter 13 plan, it violates the South Dakota exemption to forcibly includ e thes e benefits in a hypothetical Chapter 13 analysis under § 707(b)

. Second, on a more practical level, Debtors suggest that § 707(b) dismissal s in cases such as this will leave debtors no avenue of bankruptcy relief,

### -10-

because they have no non-exempt assets worth protecting in a Chapter 1 3 proceeding.

On balance, we conclude these arguments are unpersuasive. Chapte r 13 relief remains who lly voluntary, and debtors whose Chapter 7 petitions are dismissed for sub stantial abuse are not compelled to file for Chapter 13 relief. Congress is free to limit Chapter 7 protection to truly needy debt ors who cannot fund a Chapter 13 plan with exempt and non-exemp t 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 , 164 B.R. 651, 656 (Bankr. E.D. Wash. 1994):

[Sec tion] 1325(b) balances the interests of debtors an d credit ors by independently limiting a debtor's ability t o shelter income from exempt sources away from his cr editors when he otherwise has sufficient income to meet his basic needs

. Section 707(b), by incorporating a disposable income test , simila rlybalances the interests of debtors and creditors b y 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 disput e tha t debtors are entitled to any exemption which they ma y val idlyclaim, the ability to claim an exemption is a n inde pendent issue from whether debtors have the ability t o repay their debts.

IV.

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

### -11-

LAY, Circuit Judge, dissenting.

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

The district court affirmed the bankruptcy court's denial of th e trustee's motion to dismiss and remanded the cas e 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 2 8 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 her e will remain reviewable at the conclusion of the case.

The majority justifies an exception to the final order doctrin e because th e 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 coul d be immediately appealed. Thus, if an appellate court would believe th e distric t court wrongly denied a Rule 12(b)(6) motion, the court coul d entertain the appeal on the basis of futility and practicality. Such an approach ignores our disfavor of piecemeal appeals. By rel ying on In re Christian , 804 F.2d 46 (3d Cir. 1986), th e majority rejects the final order rule of this circuit and adopts a n approach rejected by most other circuits. In Ch ristian , the Third Circuit considered whether it had jurisdiction to consider a creditor's appeal fro m a district court orde r that affirmed the bankruptcy court's denial of the credit ors' motion to dismiss the debtor's bankruptcy petition under 1 1 U.S.C. § 707(b). The court concluded it had jurisdiction, reasoning that "[i]f the order . . .

### -12-

is not now appealable the entire bankruptcy proceedings must be completed before it can be dete rmined whether they were proper in the first place." Id. at 48.

The Christiancourt expressly reliedon In re Marin Motor Oil, Inc. , 689 F.2d 445 (3d Cir. 1982). In Marin , the Third Circuit held that "when the bankruptcy court issues what is indisputably a final order, and th e district court issues an order affirming or reversing, the district court' s ord er is also a final order." Id. at 449. The Marin court therefor e conclud ed it had jurisdiction to review a district court's order tha t
reverse d the bankruptcy court's denial of the motion of the creditor s committee to intervene. Id. However, in In re Riggsby , the Seven th Circuit analyzed the risk and harm of piecemeal appeals, and rejected Marin , a dopting the contrary "very sensibl[e]" holding o f other circuits "that remands by the district court to the bankruptcy judge are not appealable . . . where the bankruptcy judg e [is the decision-maker]." 745 F.2d 1153, 1155 (7th Cir. 1984). Judg e Posn er in Riggsbyappropriately noted this court's decision in In r e Hansen , 702 F.2d 728 (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 complain t again st the debtor. See also In re Vekco, Inc. , 792 F.2d 744 (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 r e Greene County Hosp. , 835 F.2d 589 (5th Cir. 1988). That court rejected Marin 's rationale and followed Riggsby

### -13-

and held that a district court's order affirming the bankruptcy court' s conclusion that it ha d subject matter jurisdiction was not a final order. Id. at 594-96.
Other circuits have also rejected the Third Circuit approach th at the majority adopts today

. Compare In re St. Charles Preservation Investors, Ltd. , 916 F.2d 727, 729 (D.C. Cir. 1990) (adopting Riggsby and holding tha t "a district court order remanding a case to bankruptcy court fo r signi ficant further proceedings is not final in the 28 U.S.C. § 158(d ) context"); In re Dixi e Broadcasting, Inc. , 871 F.2d 1023, 1028 (11th Cir. 1989) (questioning Christianand Marinand notin g that "[t]his Circuit has consistentlyheld that a district court order remanding the case to th e bankruptcy court is n ot a final decision for purposes of appeal."); In re Gould & Eberhardt Gear Machinery Corp. , 852 F.2d 26, 29 & n.2 (expressly rejecting Marin and adopting Riggsby to hold that "when a district court remand s a matter to the bankruptcy court for significant furthe r 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 , 847 F.2d 1019, 1022 (2d Cir. 1988) (following Riggsbyand finding n o appellate jurisdictio n); and In re Commercial Contractors, Inc. , 771 F.2d 1373 , 1375 (10th Cir. 1985) (rejecting Marin and adopting Riggsby i n 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. , 949 F.2d 107, 108 n.1 (4th Cir. 1991) (adopting Marinapproach), rev'd on other grounds sub nom. , Reiter v. Cooper , 507 U.S. 258 (1993); In re Sambo's Restaurants, Inc. , 75 4 F.2d 811, 814-15 (9th Cir. 1985) (same); and cf. , In re Gardner , 810 F.2d 87, 90 -92 (6th Cir. 1987) (finding jurisdiction after opining "th e particular circumstance[]" of addressing a purely legal question

### The majority tod ay quite correctly declines to rely on In re 5 

### Bestmann , 720 F.2d 484 (8th Cir. 1983). There, this cour t discussed Marinapprovingly infinding appellate jurisdiction over the district court's refusal to consider an appeal from th e bankru ptcycourt. Id. at 486. But the district court there ha d erroneously concluded that it lacked subject matter jurisdic tion to consider the appeal. In Bestmann we expressly noted that were we to decline to exercise appellate jurisdiction, the only issu e be fore us then--whether the district court had jurisdiction t o cons ider the appeal--would never receive appellate review. Id

. Bestmann should not be read any broader than its limited holding, especially in light of Hansen and Vekco

. See supra at 2-3.
In this regard the present case is distinguished from In r e 6 

### Huebner , 986 F.2d 1222 (8th Cir. 1993). There, we held that a n order denying a debtor's claimed exemption is final under § 158(d), after recognizing the district court's order would actuallyplace the purportedly exempt assets into the bankruptcy estate. I note, however, that even in Huebner we cautioned that we were no t abandoning "our prior decision s holding that district court orders remanding to the bankruptcy co urt are seldom final." Id. at 1224. Today's decision tosses that caution aside.
-14- that would determine the outcome removed the cas e from the Riggsbyline of cases).

We should adhere to the reasoned approach of most of our siste r circuits and recognize that a district court's order remanding a case to the bankruptcy court for further proceedings beyond mere ministerial dutie s does not constitute a final order. There is nothing final in the district 5 court's returning the case to the bankruptcy court for extensive further proceedings, and at l east we should not in reaching a contrary conclusion adopt a standard reasonably denounced by the majority of circuits. No r does this case pose an issue whose resolution will answer what actuall y belongs in a bankruptcy estate, since the ultimate question raised to us is whether the Debtors' worker's compensation be nefits should "be excluded from t he hypothetical Chapter 13 analysis that underlies a substantia l abuse determination." Ante , at 10. In short, the question is only whethe r the De btors' worker's compensation benefits would preclude his use o f Chapter 7, and in order for us to consider this question on appeal, as 6

### -15-

Judg e Goldberg put it, "the game must really be over." Greene Count y Hospital , 835 F.2d at 595.

Until today, that we may deem it feasible or practical to review a district court order has not granted us appellate jurisdiction. B y embrac ing the Third Circuit's oft criticized approach, albeit with goo d intent ions of convenience and economy, we now inevitably invite th e 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 r e Kelly , 841 F.2d 908, 911 (9th C ir. 1988) (concluding that because "legal issues predominate" th e questi ons raised on appeal, "judicial efficiency and finality are bes t served" by exercising appellate jurisdiction). This fosters only passing convenience and is far from the law. If the cou rts do not follow reasoned prec edent governing basic jurisdictional principles, we can not expec t lawyers and litigants to do so. We should strictly apply ou r jurisd ictional 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.