The Bankruptcy Code does not define the phrase "any form of means testing" as used in § 707(b)(2)(D). However, its meaning is quite clear in both the original version of § 707(b)(2)(D) and the 2008 amended version. It refers to the statutory formula enacted by BAPCPA and codified in § 707(b)(2). The Conference Report of the House of Representatives Judiciary Committee, the best available legislative history of BAPCPA, explains that the primary purpose of BAPCPA, and the central debate which preceded its becoming law, was whether the Bankruptcy Code, for the first time, should include "means testing"—a statutory formula for determining if Chapter 7 debtors who could pay back a certain portion of their unsecured debt should have their case dismissed (or converted with the debtor's consent):
The heart of the bill's consumer bankruptcy reforms consists of the implementation of an income/expense screening mechanism (`needs based bankruptcy relief or means testing') which is intended to ensure that debtors repay creditors the maximum they can afford.
H.R. Rep. 109-31(1) (2005),
reprinted in 2005 U.S.C.C.A.N. 88, 89. In simplest terms, "means testing" did not exist under the Bankruptcy Code prior to BAPCPA.
See also Phillips, 417 B.R. at 36 ("`BAPCPA'" brought a "sea change" to [§ 707(b)].).
In addition, § 707(b)(2)(D) is a subsection of § 707(b)(2) and its language is not repeated or referenced in § 707(b)(3). The statutory construction of § 707(b)(2)(D) referencing subsections A through C of § 707(b)(2), but not referencing § 707(b)(3), strongly suggests § 707(b)(2)(D) applies only to the provisions of § 707(b)(2). Cf.
Florida Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, ___, 128 S.Ct. 2326, 2336, 171 L.Ed.2d 203 (2008) ("The placement of § 1146(a) within a subchapter expressly limited to postconfirmation matters undermines Piccadilly's view that § 1146(a) covers preconfirmation transfers."). Moreover, § 707(b)(3) represents, with certain burdens of proof modified by BAPCPA's changes to § 707(b), a codification of pre-BAPCPA § 707(b), which allowed a dismissal for bad faith or a totality of the debtor's financial condition.
See Behlke v. Eisen (In re Behlke), 358 F.3d 429 (6th Cir.2004). An ability to pay argument under § 707(b)(3) is not a means test any more than pre-BAPCPA § 707(b) was a means test.