dissenting.
Based on “information” presented by the DOE in its petition for rehearing, but not otherwise identified in its opinion, the majority has (1) reversed its earlier determination that the decision of the bankruptcy judge and district court from which the DOE appeals is non-final; (2) decided that this court has subject matter jurisdiction over the DOE’s appeal; and (3) resolved the merits of the appeal. Because I disagree with the conclusions reached by the majority with respect to all three issues, I respectfully dissent.
I. Finality
The information to which the majority refers in reversing its position regarding the finality of the bankruptcy judge’s decision is two documents which the DOE attached to its petition for rehearing, neither of which were included by the parties in the stipulated record. The first document is a “Memorandum and Order” issued by the bankruptcy judge on May 11, 1983, in which he enjoined the DOE:
from proceeding or continuing in any manner of the administrative proceedings against the debtor until a reasonable time has elapsed after the timeliness of filing of claim issue and the two subordination issues have been resolved by this court. If all those issues are resolved adversely to the trustee this court, at time of resolution, will set a date by which the trustee shall have filed his objections to the PRO or, if this court so determines, shall have joined issue in this court to the factual issues contained in the proof of claim and the incorporated Proposed Remedial Order.
Attach. A to DOE Pet. for Reh. The second document is styled “First Supplement to Objection to DOE’s Claim No. 38” in which the trustee objects to the amount of the DOE’s claim on several grounds.1 Based upon this information, the majority concludes “that unless this court decides the issue of the subordination of DOE’s claim, the amount of that claim will never be finally determined and the DOE will have no opportunity to pursue this matter on appeal;” however, it provides neither explanation of how it reached that conclusion, nor discussion of how that conclusion creates jurisdiction under the collateral order doctrine.
The collateral order doctrine is an exception to the final judgment rule of 28 U.S.C. § 1291. It permits immediate appeal of orders which “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), Even assuming that this exception applies to appeals under 28 U.S.C. § 158(d), an assumption which is implicit in the majority’s decision, neither of the two documents to which it refers changes my opinion that the bankruptcy judge’s order did not conclusively determine the dispute regarding the DOE’s claim. There is nothing in the majority’s opinion to indicate why the entry of an injunction barring further *1428administrative proceedings by the DOE2 prevents the bankruptcy judge from determining the amount of the DOE claim to be allowed as he is required to do under the Bankruptcy Code. Section 502 of the Bankruptcy Code provides that where a party in interest has objected to a claim as the trustee has done in theis case,3 the bankruptcy judge:
after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount
11 U.S.C. § 502(b) (emphasis added). Where the claim is unliquidated like that of the DOE in this case, section 502 provides that:
(c) There shall be estimated for purpose of allowance under this section—
(1) any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case;
11 U.S.C. § 502(c)(1). Thus, regardless of any pending administrative proceeding, the bankruptcy judge must determine the amount of the DOE’s claim to be allowed and his order subordinating the DOE’s claim is reviewable on appeal from that determination.4 Consequently, the bankruptcy judge’s order is not “effectively unreviewable on an appeal” from final determination of the DOE’s claim. Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct. at 2458. Moreover, the majority itself has found that “[t]he question of priority [apparently referring to subordination] is not separable from and collateral to the question of allowance.” In the majority’s own view, the bankruptcy judge’s order subordinating the DOE’s claim did not “resolve an important issue completely separate from the merits of the action.” Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct. at 2458. Because the bankruptcy judge’s order fails two of the three tests for determining whether it is a collateral order, the collateral order exception is inapplicable and the order is not presently reviewable.
The bankruptcy judge is obligated to determine the amount of the DOE’s claim regardless of whether it has been subordinated; reviewing at this time his order subordinating the DOE’s claim accomplishes nothing other than creation of the potential for multiple appeals where formerly there could have been but one.5 This waste of judicial resources is particularly objectionable where there may never be a need to resolve the DOE’s appeal. As the majority recognizes, if the tax claim of the United States is allowed, it must be paid *1429before the DOE's claim, see 11 U.S.C. §§ 507(a)(7) and 726(a)(1), and the DOE’s appeal will be moot.
II. Subject Matter Jurisdiction
Although the majority finds it has subject matter jurisdiction to determine this appeal, I am unable to understand where that source of jurisdiction is found. The principal inquiry of the Temporary Emergency Court of Appeals (“the TECA”) in determining whether it has jurisdiction over an appeal is whether an EPAA issue was adjudicated by the district court.6 Mobil Oil Corp. v. Department of Energy, supra, 728 F.2d at 1497; Francis Oil & Gas, Inc. v. Exxon Corp., 687 F.2d 484, 487 (Em.App.) cert. denied, 459 U.S. 1010, 103 5. Ct. 365, 74 L.Ed.2d 400 (1982); Texaco, Inc. v. Department of Energy, 616 F.2d 1193, 1198 (Em.App.1979). The order of the bankruptcy judge from which the DOE appeals contains not a single reference to the EPAA or its implementing regulations. His decision is based entirely on his interpretation of § 726(a)(4) of the Bankruptcy Code. Such a decision cannot be said to have adjudicated an EPAA issue, and this court therefore lacks subject matter jurisdiction over the DOE’s appeal.
The majority contends that this court has jurisdiction “to consider cases necessarily involving, in whole or in part, ESA or EPAA issues, even though there may be other intertwined non-EPAA/ESA issues.” Notwithstanding the bankruptcy judge’s failure to so much as mention the EPAA, the majority theorizes that this case “involves” EPAA issues because the “legal consequences of the claim at issue depend mainly upon an interpretation of the EPAA, its implementation and enforcement.” The majority’s explanation of their conclusion is merely that:
[t]he bankruptcy judge and the district court necessarily had to consider EPAA/ESA issues in arriving at a proper decision whether DOE’s claim was for a penalty or for restitution. Even though they did not do so expressly, their interlocutory decisions were dispositive of those issues at least for the time being. As such, they necessarily decided them, subject to the exclusive jurisdiction of this court from any final decision to that effect.
The majority makes no attempt to reconcile its decision finding subject matter jurisdiction with the cases previously decided by the TECA that hold that our subject matter jurisdiction is contingent on the adjudication by the district court of an EPAA issue. It has reached out beyound the “special and limited jurisdiction” of this court, MPGC, Inc. v. Department of Energy, 673 F.2d 1277, 1280 (Em.App.1982); Texaco, Inc. v. Department of Energy, supra, 616 F.2d at 1194, to decide a bankruptcy issue.
III. The Merits of the DOE’s Appeal
The majority having determined not only that this court has jurisdiction to consider an appeal from the non-final decision of the bankruptcy judge which adjudicated no EPAA issue, but having resolved the merits of that appeal as well, I find it necessary to point out what I believe to be the proper resolution of the merits of this appeal were it properly before us.
In his order of June 21, 1983, the bankruptcy judge subordinated the DOE’s claim pursuant to 11 U.S.C. § 726, which provides:
(a) Except as provided in section 510 of this title, property of the estate shall be distributed—
******
*1430(4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.
11 U.S.C. § 726(a)(4). The bankruptcy judge found that the DOE’s claim did not represent actual pecuniary loss to the DOE. He therefore concluded its claim must be subordinated, pursuant to § 726(a)(4), to the claims of those creditors who did suffer pecuniary loss.
The majority, however, has determined that the bankruptcy judge improperly subordinated the DOE’s claim because it interprets “the clear wording of the statute” to mean that the question of whether a claim is “compensation for actual pecuniary loss suffered by the holder of such claim” arises only where the claim can be characterized as a penalty. While I would not disagree with their interpretion of the plain language of the statute if we were writing upon a clean slate, I cannot ignore the case law which has interpreted the statute differently.
Although I have found no appellate case which has interpreted 11 U.S.C. § 726(a)(4), several cases have interpreted its predecessor, section 57j of the Bankruptcy Act of 1898.7 Section 726(a)(4) of the Code and section 57j of the Act are substantially identical; the most salient difference is that section 57j provided that a claim for a penalty not representing pecuniary loss to the holder of the claim would be disallowed rather than merely subordinated as under § 726(a)(4) of the Code. There is no evidence in the legislative history of § 726(a)(4) to suggest that it should be interpreted differently than § 57j of the Act.
The interpretation given § 57j by the Supreme Court is different than that which the plain language of that provision would suggest. In Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962), the Court broadly interpreted the scope of § 57j in holding that provision barred a claim for tax penalties by the United States against the bankrupt’s estate. The Supreme Court did not limit § 57j to claims for a penalty or forfeiture. Instead, the Court found that § 57j “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss.” Id. at 538-39.
The Courts of Appeals have consistently interpreted § 57j in accordance with the Supreme Court’s opinion in Simonson. For example, in a case involving the right of the United States to recover excise taxes from the estate of a bankrupt, In re Unified Control Systems, Inc., 586 F.2d 1036 (5th Cir.1978), the district court had held that “[i]f Congress designates an exaction a tax, then that tax is not a § 57(j) [sic] penalty if it is a constitutional exercise of the taxing power under Article I, Section 8, Clause 1, of the United States Constitution.” The Fifth Circuit, however, reversed:
We cannot agree with the suggestion that the label placed upon an imposition in a revenue measure is decisive in determining its character____ We disagree, too, with the conclusion that a tax under the Constitution cannot be a penalty. Section 57j places penalties in a category quite different from debts, and the character of a penalty cannot be changed by calling it a tax. The words of the statute precisely reveal the purpose of Congress not to exercise its sovereign right to a claim against a bankrupt except to the extent that there has been a pecuniary loss.
Id. at 1037-38 (footnote omitted). Accord United States Department of Interior v. *1431Elliott, 761 F.2d 168, 170 (4th Cir.1985) (“language of section 57(j) [sic] appears to be broad enough to ‘bar all claims except those based on a pecuniary loss’ ”); United States v. RePass, 688 F.2d 154, 158 (2d Cir.1982); (“Only that portion of the damages which represents the amount of pecuniary loss sustained by the transaction ... is within the purview of section 57(j) [sic] of the act”); United States v. Moore, 366 F.2d 243, 246 (5th Cir.1966) (“to the extent that this sum does not represent pecuniary loss it is a penalty”); see also, In re Compton Corp., 40 B.R. 875, 877 (Bkrtcy.N.D.Tex.1984) (“Bankruptcy case law under the former Bankruptcy Act delimiting the concept of ‘penalty’ is still the law. Controlling precedent defines a Bankruptcy penalty as a claim without actual pecuniary loss to the claimant”). Thus, the crucial test for determining whether a claim not otherwise labeled as a penalty is a penalty for the purpose of § 726(a)(4) is whether the holder of the claim suffered pecuniary loss. This is precisely the test applied by the bankruptcy judge.
Nevertheless, the majority by reference solely to the statute, determined that the “question of whether the DOE suffered actual pecuniary loss is immaterial,” and that the bankruptcy judge therefore improperly subordinated the DOE’s claim.8 I disagree.
I respectfully dissent.
. The objections are:
A. The entire foundation for alleged liability under Claim No. 38 is denied by Debtor.
B. The amount alleged by Claim No. 38 is unliquidated an contingent and dependant upon findings by this or other Court of liability on a transaction by transaction basis.
C. Claim No. 38 includes interest which is impermissible under the Bankruptcy Code.
D. The books and records of Debtor indicate no such liability as is asserted under Claim No. 38.
E. Claim No. 38 contains duplicative damages or claims which would result in double recovery.
Attach. B to DOE Pet. for Reh.
. Indeed, it is not clear why it was necessary to enjoin the DOE. The Bankruptcy Code provides for an automatic stay upon the filing of a petition for relief of:
the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]
11 U.S.C. § 362(a)(1) (1983) (emphasis added), amended by Pub.L. No. 98-353, § 441(a), 98 Stat. 371 (1984) which inserted the words "action or” after "other.”
. Although the stipulated record contains no indication whether the trustee has challenged the DOE’s claim, both parties at oral argument agreed that the trustee had filed an objection to the DOE's claim. The substance of that objection is apparently contained in the trustee's "First Supplement to Objection to DOE’s Claim No. 38” which the DOE attached to its petition for rehearing.
. Review of the bankruptcy judge’s order could also be accomplished on appeal from an order for the distribution of the estate. See Bankruptcy Rule 3009.
. We may now be faced with three spearate appeals. Before determining the amount of the DOE’s claim, the bankruptcy judge may reconsider whether the DOE’s claim should be equitably subordinated pursuant to 11 U.S.C. § 510(c), determination of which was pretermitted by his decision subordinating the DOE’s claim under 11 U.S.C. § 726(a)(4). Considering the analysis and result reached by the bankruptcy judge in In re Colin, 44 B.R. 806 (Bkrtcy.S.D.N.Y.1984), it is possible that the DOE’s claim will once again be subordinated by the bankruptcy judge and another appeal taken — all before determination of the amount of the claim.
. Although the TECA has described as a second principal inquiry whether "resolution of the litigation in its entirety requires interpretation or application of the EPAA and regulations,” Mobil Oil Corp. v. Department of Energy, 728 F.2d 1477, 1497 (Em.App.1983), cert denied, — U.S. -, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984), only one decision by this court purports to apply that test. Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp., 591 F.2d 711 (Em.App.) cert. denied, 444 U.S. 879, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979). The defendant’s counterclaim in that case, however, presented an EPAA issue which had been adjudicated by the district court. Id. at 716. I have found no case in which this court exercised its jurisdiction where no EPAA issue had been adjudicated by the district court.
. Section 57j of the Bankruptcy Act provided:
Debts owing to the United States or to any States or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose ...
11 U.S.C. § 93j (repealed October 1, 1979).
. My failure to comment upon the majority’s description of the DOE’s claim as one for restitution under section 209 of the ESA should not be taken as acquiescence in the majority’s opinion. See United States Department of Energy v. West Texas Marketing Corp., 763 F.2d 1411, 1414-15 n. 4 (opinion of Sear, J.). Resolution of this appeal does not require determination of those issues.