The en banc oral argument in Nancy Clark’s Flores case has been set for this coming Tuesday. The announcement is here. Kozinski is part of the panel. The 9th Circuit Opinion which has been vacated by the en banc decision is here.
Flores is the chapter 13 case which trys to answer the question of whether an over median debtor who has a negative “net disposal income” per the means test is required to have a five year plan. The Supreme Court case of Lanning v. Hamilton said that if the means test net is a negative number, the court has to use common sense and pick some reasonable plan payment amount. The code says over median debtors have to pay for five years, but they have to pay the means test amount. Since that cannot be done and the court must pick a reasonable amount, can’t the court also pick a reasonable period? The 9th Circuit in Flores said, yes. The 9th Circuit will review that ruling en banc on Tuesday.