Barkley

Appellant is a Chapter 7 trustee of the estate of the debtors, Wilker and Janice Conner. The contested property is Janice Conner’s interest in her pension and profit sharing plan, which is maintained by her employer, The Orthopedic Clinic. The trustee now appeals from a decision of the Bankruptcy Appellate Panel affirming a bankruptcy court order that refused to turn over the debtor’s interest in the plan to the bankruptcy estate. The issue is whether the debtor’s interest in the plan is exempted from the bankruptcy estate under 11 U.S.C. § 541 (e)(2). That section provides that interest in a trust that is subject to transfer restrictions under “applicable non-bankruptcy law” is not part of the bankruptcy estate. 11 U.S.C. § 541 (c)(2).

The BAP held that under the controlling law of this circuit, the after tax contributions of the Conners to the plan should be excluded from the estate because the plan itself was an ERISA qualified plan that had an anti-alienation provision. See In re: Rueter, 11 F.3d 850 (9th Cir.1993), applying Patterson v. Shumate, 504 U.S. 753 , 112 S.Ct. 2242 , 119 L.Ed.2d 519 (1992).

The BAP decision is published at 165 B.R. 901 (9th Cir. BAP 1994). Judge…