Cranberry Growers Cooperative v. Patrick Layng ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3289
IN RE: CRANBERRY GROWERS
COOPERATIVE, doing business as
CranGrow,
Debtor-Appellee,
v.
APPEAL OF: PATRICK S. LAYNG, United
States Trustee for Western District
of Wisconsin.
____________________
Appeal from the United States Bankruptcy Court for the
Western District of Wisconsin.
No. 1:17-bk-13318-cjf — Catherine J. Furay, Chief Bankruptcy Judge.
____________________
ARGUED MAY 17, 2019 — DECIDED JULY 17, 2019
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Under 28 U.S.C. § 1930(a)(6), quar-
terly fees paid by a chapter 11 debtor to the bankruptcy
Trustee are based on the debtor’s disbursements. Here, the
Bankruptcy Court determined that certain payments made
by the customers of Cranberry Growers Cooperative
2 No. 18-3289
(“CranGrow”) to its lender should not be considered “dis-
bursements” for purposes of that calculation. Patrick S.
Layng, United States Trustee for the Western District of Wis-
consin (“Trustee”), appeals that determination. CranGrow
agrees with the Bankruptcy Court’s interpretation of dis-
bursements, but, for the first time on appeal, maintains that
the Bankruptcy Court unconstitutionally applied the recent-
ly amended fee schedule in assessing its quarterly fees.
We believe that the language of the fee statute requires
that payments made by CranGrow’s customers to
CranGrow’s lender be considered disbursements. We also
decline CranGrow’s belated invitation to consider the consti-
tutionality of the fee statute. We therefore reverse the Bank-
ruptcy Court’s judgment and remand for further proceed-
ings consistent with this opinion.
I
BACKGROUND
CranGrow is an unincorporated association that filed for
1
chapter 11 bankruptcy relief on September 25, 2017. At that
time, CranGrow owed its bank, CoBank ACB (“CoBank”),
2
roughly $8.1 million on a revolving line of credit.
Shortly after filing for bankruptcy, CranGrow asked the
Bankruptcy Court for permission to enter a new borrowing
1 B.R.384 at 1.
2 B.R.389 at 9 n.1. The parties and the Bankruptcy Court frequently refer
to this revolving line of credit as “the revolver.”
No. 18-3289 3
arrangement with CoBank that would give CranGrow an
additional $5 million in credit needed to satisfy various
3
monthly obligations. According to the agreement, CoBank
would increase the limit on CranGrow’s revolving line of
4
credit to $13.25 million. CoBank would advance funds un-
der the new line of credit so that CranGrow could pay its
5
operating expenses in accordance with a budget that
6
CranGrow regularly submitted to CoBank. In return,
CranGrow agreed that all proceeds from its inventory sales
would be paid directly to CoBank; these payments first
would be used to pay off the existing, prepetition debt of
$8.1 million, and then to repay amounts that CoBank ex-
7
tended under the new, postpetition line of credit. Thus, ac-
cording to this “roll-up” arrangement, postpetition pay-
ments would be used to reduce the prepetition debt bal-
8
ance. The financing agreement also provided that the post-
petition loan would be given priority over other postpetition
9
administrative expenses. In seeking the Bankruptcy Court’s
approval for this arrangement, CranGrow represented that it
had no other reasonable alternatives for postpetition financ-
3 B.R.10 at 15.
4 Id. at 3.
5 Id. at 5.
6 B.R.384-2 at 7; see also id. at 6 (defining “Budget”).
7 Id. at 6.
8 B.R.10 at 16.
9 B.R.384-2 at 5.
4 No. 18-3289
10 11
ing. Although the Trustee objected to the roll-up request,
the Bankruptcy Court approved the financing arrangement.
After the agreement was signed, CranGrow’s customers
made payments to CoBank, and these payments were ap-
plied daily, as they were received, to reduce CranGrow’s
12
prepetition debt to CoBank. The payments did not result in
an automatic extension of postpetition credit to CranGrow in
the amount of the payments. Instead, CoBank extended
funds for operating expenses to CranGrow on a weekly ba-
13
sis according to the budget that had been submitted to, and
14
approved by, CoBank.
On December 19, 2017, CranGrow proposed a chapter 11
reorganization plan. The Bankruptcy Court confirmed the
plan on February 16, 2018, and it became effective on April
27, 2018. During this time, CranGrow made the required
quarterly fee payments to the Trustee. As already noted,
§ 1930(a)(6) of Title 28 of the United States Code provides
that fees are to be calculated based on the amount of the
debtor’s disbursements during the preceding quarter. In
calculating its quarterly fees, CranGrow did not include as
disbursements the amount that CranGrow’s customers paid
10 B.R.10 at 17.
11 B.R.67 at 6.
12 See, e.g., B.R.137 at 4.
13 B.R.401 at 18.
14 B.R.384-2 at 7.
No. 18-3289 5
15
directly to CoBank. CranGrow took the position that the
collection of accounts receivable was not a disbursement
because “[w]hen collected, accounts receivable sweep to pay
down the revolver …, and then the revolver is borrowed
16
against to remit disbursements.”
The Trustee disagreed with this characterization. He
maintained that, because the customers’ payments were be-
ing used to reduce CranGrow’s prepetition indebtedness,
17
they should be considered disbursements. When
CranGrow continued to calculate and pay its quarterly fees
without including its customers’ payments to CoBank, the
Trustee sent CranGrow a delinquency notice. CranGrow ob-
jected and asked the Bankruptcy Court to interpret the term
disbursement to exclude the receivable payments to CoBank
on the ground that the “funds were never seen by CranGrow
or deposited in any way into a debtor-in-possession ac-
18
count.” In the alternative, it asked the Bankruptcy Court to
19
waive the fees.
In a written opinion, the Bankruptcy Court held that the
customer payments to CoBank were not disbursements. It
acknowledged that “[m]ost courts turn to the ‘plain mean-
ing’ of ‘disbursement’ and define it expansively to include
15 See, e.g., B.R. 137 at 2.
16 Id.
17 B.R.384-3 at 2.
18 B.R.323 at 4.
19 Id. at 17–18.
6 No. 18-3289
any transfer of funds of the estate—regardless of the method
20
of transfer.” The court further acknowledged that “[m]ost
often, payments on revolving lines of credit are considered
21
disbursements.” Nevertheless, even though CranGrow’s
arrangement with CoBank “appear[ed] on the surface” to be
similar to cases in which payments to creditors had been
considered disbursements, the Bankruptcy Court concluded
that the substance of the arrangements requires a different
result:
The deposit of funds into CranGrow’s account
was not governed by a formula that deter-
mined the amount of available credit. Rather,
all of the collected accounts receivable minus
fees and interest were deposited into Debtor’s
account. This flow of funds into the Debtor’s
account was viewed by the parties as a cash
management system. There was a continual
flow of dollars against the prepetition debt
converting it to immediately available funds as
postpetition debt. While expenditure of the
funds is limited by a budget, there was a sym-
metry between amounts credited against the
prepetition line of credit balance and the
amounts drawn on the postpetition line of
credit.[22]
20 B.R.389 at 3.
21 Id. at 4.
22 Id. at 5.
No. 18-3289 7
The Bankruptcy Court also believed that the Trustee’s
authorities were distinguishable
because the funds at issue here—as a matter of
substance—never settle debt. The cases cited
by the [Trustee] involve funds permanently
leaving the estate, whether through payment
of operating expenses, prepayment of a loan,
satisfaction of a mortgage through selling land,
or reduction of line of credit indebtedness for
periods of time. Here, the funds at issue—cash
collateral—were returned to CranGrow imme-
diately. It paid interest and fees from those
funds before the money was deposited in its
account. To the extent there was no reduction
in the total revolver indebtedness, there was no
real change in the underlying economic cir-
cumstances. CoBank merely received accounts
receivable, subtracted fees and expenses, and
returned the remainder to CranGrow. Analyz-
ing the economic realities yields the conclusion
these funds functionally belonged to
CranGrow the entire time and were thus not
“paid out” or “expended” in the traditional
sense of “disbursement.”[23]
Instead, the Bankruptcy Court likened CranGrow’s ar-
rangement to that employed in In re HSSI, 176 B.R. 809(Bankr. N.D. Ill. 1995), rev’d, 193 B.R. 851 (N.D. Ill. 1996). In
23 Id. at 9–10.
8 No. 18-3289
that case, subsidiary debtors deposited proceeds from some
of their sales into “a pooled account. Pooled funds were
used to make payments to a postpetition lender on an out-
standing loan. Payments from the pooled account to repay
the loan were disbursements, but payments from the single
24
accounts to the pooled accounts were not disbursements.”
According to the Bankruptcy Court, CranGrow’s roll-up ar-
rangement
contain[ed] elements of a cash management
system and transfers like that in HSSI. First, the
DIP Revolver Loan document refers to the set-
up as a “cash management arrangement,” re-
vealing the parties’ intent. Second, funds are
merely “recycled” through CoBank, who
serves only as a conduit between revenue and
expenses, since funds are immediately read-
vanced and deposited into Debtor’s account.[25]
Finally, the court was concerned with “double dip[ping]”
26
by the Trustee. The court explained that, given that farming
is seasonal, “CranGrow operates at break-even or a loss for
much of the year,” during which times
CranGrow is cash-poor. Its prepetition revolv-
er exhausted, it needed the availability of over-
advances from the DIP Revolver Loan. In fact,
24 Id. at 11 (citations omitted).
25 Id.
26 Id. at 12.
No. 18-3289 9
the Revolver draw/repayment is projected to
be identical to the net negative cash flow until
about the fourth quarter of 2018. The negative
cash flow also includes the [United States Trus-
tee] quarterly fee. Since it is cash flow negative
and draws additional funds to pay UST fees,
CranGrow incurs UST fees on fees if applying
accounts receivables to the prepetition debt
and then immediately converting it to a post-
petition debt re-advance counts as two sepa-
rate disbursements. This in effect represents a
fee on a fee, or a form of double tax, resulting
in an unfair cycle and snowball effect for much
of the year.[27]
According to the Bankruptcy Court, “the [Bankruptcy]
28
Code aims to provide debtors with a ‘fresh start.’” Includ-
ing “revolver” transactions as disbursements would have “a
‘severe impact’ on the ability of debtors, including
CranGrow, to obtain a ‘fresh start’ and effectively reorgan-
29
ize.” In sum, the Bankruptcy Court concluded that treating
the revolver payments as disbursements “harms the viability
30
of CranGrow moving forward,” and, generally, “does not
27 Id.
28 Id. at 13 (quoting Grogan v. Garner, 498 U.S. 279, 286 (1991)).
29 Id. at 14.
30 Id.
10 No. 18-3289
31
further the underlying purposes of section 1930(a)(6).”
Consequently, the Bankruptcy Court denied the Trustee’s
32
petition for fees. The Trustee petitioned to file a direct ap-
33
peal to this court, which we granted.
II
DISCUSSION
A.
Section 1930(a) of Title 28 of the United States Code re-
quires debtors to pay fees into the United States Trustee Sys-
tem Fund to support the operations of the bankruptcy
courts. During the pendency of their bankruptcy cases, chap-
ter 11 debtors are required to pay quarterly fees to the Trus-
tee based on the amount of disbursements made by the
bankruptcy estate. See 28 U.S.C. § 1930(a)(6). These range
from $325 per quarter for debtors whose disbursements are
$15,000 or less to $30,000 per quarter for debtors whose dis-
bursements total more than $30,000,000. See id.31 Id. at 15.
32 The practical effect of the Bankruptcy Court’s decision is illustrated by
a chart in CranGrow’s brief. See Appellee’s Br. 15. If customer payments
were included as disbursements in the calculation of quarterly fees,
CranGrow’s fees for 2018 would have increased from $199,925.64 to
$402,872.31.
33 The Bankruptcy Court had jurisdiction over CranGrow’s chapter 11
bankruptcy case pursuant to 28 U.S.C. §§ 157(a) and (b), and 1334(a). Our
jurisdiction is secure under 28 U.S.C. § 158(d)(2).
No. 18-3289 11
In 2017, Congress enacted a temporary amendment to 28
U.S.C. § 1930(a)(6) that significantly increases the fees for
debtors whose quarterly disbursements are $1,000,000 or
more; it provides:
During each of fiscal years 2018 through 2022,
if the balance in the United States Trustee Sys-
tem Fund as of September 30 of the most recent
full fiscal year is less than $200,000,000, the
quarterly fee payable for a quarter in which
disbursements equal or exceed $1,000,000 shall
be the lesser of 1 percent of such disburse-
ments or $250,000.
28 U.S.C. § 1930(a)(6)(B).
Here, the parties dispute the meaning of the term “dis-
bursement.”34 Because “disbursement” is not defined in the
Bankruptcy Code, we employ the ordinary meaning of the
term. See Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69
(2011) (employing the ordinary meaning of the term “appli-
cable” because the term is not defined in the Bankruptcy
Code). The dictionary definition of “disbursement” is
“[m]oney paid out; expenditure.” The American Heritage
Dictionary of the English Language (5th ed. 2018). In apply-
ing this term, courts have concluded that it is an “expansive
term.” Tighe v. Celebrity Home Entm’t, Inc. (In re Celebrity
Home Entm’t, Inc.), 210 F.3d 995, 998 (9th Cir. 2000) (internal
34 We review the Bankruptcy Court’s interpretation of the statute, specif-
ically the meaning of disbursement under 28 U.S.C. § 1930(a), de novo.
See Wittman v. Koenig, 831 F.3d 416, 419 (7th Cir. 2016).
12 No. 18-3289
35
quotation marks omitted). It includes payments “made in
the ordinary course of business,” Walton v. Jamko, Inc. (In re
Jamko, Inc.), 240 F.3d 1312, 1316 (11th Cir. 2001), whether
made to secured or unsecured creditors, see St. Angelo v. Vic-
toria Farms, Inc., 38 F.3d 1525, 1534 (9th Cir. 1994), amended,
46 F.3d 969 (9th Cir. 1995). Moreover, disbursements include
“[p]ayments made on behalf of a debtor, whether made di-
rectly or indirectly,” Genesis Health Ventures, Inc. v. Stapleton
(In re Genesis Health Ventures, Inc.), 402 F.3d 416, 422 (3d Cir.
2005); see also St. Angelo, 38 F.3d at 1534–35, as well as pay-
ments made on revolving lines of credit, see In re Fabricators
Supply, Inc., 292 B.R. 531, 534 (Bankr. D.N.J. 2003); United
States Trustee v. Wernerstruck, Inc. (In re Wernerstruck, Inc.),
130 B.R. 86, 89 (D.S.D. 1991). Indeed, the Bankruptcy Court
acknowledged that “[t]he great weight of case law broadly
defines ‘disbursements,’” and the majority view considers
direct payments to revolving lines of credit to be disburse-
36
ments.
Based on this definition, the payments made by
CranGrow’s customers to CoBank were disbursements. They
were funds “paid out” to one of CranGrow’s creditors on
behalf of CranGrow. Indeed, the customer payments here
closely resemble those in In re Fabricators Supply, in which
35 See also Robiner v. Danny’s Mkts., Inc. (In re Danny’s Mkts., Inc.), 266
F.3d 523, 526 (6th Cir. 2001) (“We are unable to escape the conclusion
that … Congress contemplated that disbursements will encompass all
payments to third parties directly attributable to the existence of the
bankruptcy proceeding … .”).
36 B.R.389 at 15.
No. 18-3289 13
the court concluded that such payments constituted dis-
bursements. In that case, after filing for chapter 11 protec-
tion, Fabricators entered into a postpetition loan agreement
for a $2.5 million revolving line of credit with Fleet Capital.
In re Fabricators Supply, 292 B.R. at 532. At the time that the
postpetition financing agreement was authorized by the
court, Fabricators owed Fleet approximately $1.8 million. Id.The agreement “direct[ed] Fabricators to remit to Fleet all
cash collateral, and further authoriz[ed] Fleet to apply the
funds collected to the outstanding balance owed.” Id. Pursu-
ant to the agreement, Fabricators deposited all accounts re-
ceivable and other proceeds into an account that Fleet main-
tained. Id. Fabricators described this account for receivables
as “blocked” because “Fleet ha[d] sole control over this ac-
count, and Fabricators [could ]not withdraw any money
from the account.” Id. at 532–33 (internal quotation marks
omitted). Fleet swept the monies from the blocked account
on a daily basis. Id. at 533. Fabricators maintained a separate,
operating account with Fleet from which it paid vendors and
other expenses. Id. The operating account was funded by
monies transferred from the blocked account based on the
available credit on the revolving loan. Id.Fabricators maintained that Fleet’s sweeps of the blocked
account should not be considered disbursements for purpos-
es of § 1930(a)(6). It characterized its agreement with Fleet
“as creating a continuous flow of dollars against its credit
line such that no disbursement occurs when Fleet sweeps the
blocked account.” Id. Instead, it maintained “that disburse-
ments only occur[red] when it ma[de] payments from its op-
erating account.” Id. The bankruptcy court, however, disa-
greed. It held that Fleet’s daily sweeps of the blocked ac-
count were disbursements for purposes of calculating the
14 No. 18-3289
quarterly fees. It noted first that the term “disbursements”
had to be given its “ordinary, contemporary common mean-
ing.” Id. (quoting Perrin v. United States, 444 U.S. 37, 42
(1979)). It further observed that two courts of appeals, after
surveying various possible definitions, had concluded that
“disbursement simply means … ‘to expend’ or ‘to pay out.’”
Id. (quoting Cash Cow Servs. of Fla., LLC v. United States Trus-
tee (In re Cash Cow Servs. of Fla., LLC), 296 F.3d 1261, 1263
(11th Cir. 2002); St. Angelo, 38 F.3d at 1534). The court in Fab-
ricators then concluded that
it is readily apparent that the process by which
Fabricators deposits its accounts receivable in-
to the blocked account and Fleet then sweeps
that account results in disbursements to Fleet
on which the quarterly fees should be calculat-
ed. Fabricators’ contention that it cannot be
charged with a disbursement from the blocked
account because it exercises no control over the
account is totally without merit. The blocked
account and the sweep of that account is simp-
ly the payment mechanism to which Fabrica-
tors agreed when it entered into the Loan
Agreement with Fleet. The accounts receivable
deposited by Fabricators into the blocked ac-
count certainly constitute debtor funds, and
the sweep of the account by Fleet certainly
constitutes an “action or fact of disbursing” … .
Id. at 534. The court in Fabricators disagreed with the charac-
terization “that there [wa]s no economic substance to the
sweeps by Fleet because the amount of the debt owed by
Fabricators [wa]s essentially the same before and after the
No. 18-3289 15
sweeps occur as a result of the revolving nature of the loan.”
Id. It explained that “the revolving nature of the Line of
Credit is precisely what results in the disbursement when
the blocked account is swept. During the term of the Line of
Credit, Fabricators actually engages in a series of borrowing
transactions which are repaid by the sweeps of the blocked
account.” Id.
Just as Fleet’s sweep of Fabricators’ blocked account con-
stituted a disbursement, so too do payments by CranGrow’s
customers to CoBank. In both scenarios, customer payments
are being used to pay down the debtor’s revolving line of
credit. In CranGrow’s case, however, the disbursement was
simply more direct: the customers were not depositing their
payments into an account that was being swept, but were
sending their payments directly to CranGrow’s creditor.
CranGrow submits that there are critical differences be-
tween the situation in Fabricators and the one before us, and,
therefore, Fabricators should not guide our analysis. These
distinctions, however, are either illusory or immaterial. For
instance, CranGrow submits that, according to the agree-
ment in Fabricators, Fleet would make the funds available to
the debtor based on a “lending formula,” id. at 532, whereas
here, once funds were received from CranGrow’s customers,
they became immediately available to CranGrow through
37
the postpetition line of credit. However, the amount of
funds that CoBank made available to CranGrow was based
37 See Appellant’s Br. 33.
16 No. 18-3289
38
on a budget submitted to, and approved by, CoBank. And,
as CranGrow’s counsel acknowledged at oral argument, the
extension of credit was not automatic; the receipt of a cus-
tomer payment by CoBank and the extension of credit to
39
CranGrow were “two separate transactions.”
Finally, CranGrow states that, “[u]nlike CranGrow,”
“Fabricators held a depository account with its lender” and
“funds actually left Fabricators’ bank account through a
40
sweep by the lender.” CranGrow fails to explain why, for
purposes of determining whether a disbursement has been
made, it is material that CoBank is not a depository institu-
tion. Nor does it explain why it is material that customer
payments did not make a momentary stopover in a deposi-
tory account before being swept by the creditor. In both situ-
ations, funds that belonged to the debtor (customer receiva-
bles) were being paid to a creditor and, therefore, constitut-
ed disbursements.
38 See B.R.401 at 17–19 (counsel for CranGrow recalling that “the ad-
vanced funds by CoBank were supplied based on the budget, and the
budget had to be pre-approved on a weekly basis by CoBank” and also
noting that “the amount of the advances were tied, in some mathemati-
cal way, to … the assets of the debtor and the anticipated receivables of
the debtor as well”).
39 Oral Argument at 32:26. Similarly, CranGrow asserts that the exten-
sion of credit in Fabricators only involved postpetition debt. See Appel-
lee’s Br. 33. However, in Fabricators, the court recounted that, at the time
it authorized the postpetition financing, “Fabricators owed Fleet approx-
imately $1.8 million.” In re Fabricators Supply, Inc., 292 B.R. 531, 532
(Bankr. D.N.J. 2003).
40 Appellee’s Br. 33.
No. 18-3289 17
Indeed, CranGrow “concedes that a majority of courts
expansively define ‘disbursements,’ in a way that almost al-
41
ways favors the U.S. Trustee.” It argues, however, that we
should take a different approach for a number of reasons.
First, it surmises that courts historically have taken a broad
view of disbursements because, until recently, the fees were
42
relatively small. But a broad view of “disbursements” was
well established when Congress increased the fees in 2017.
“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that interpre-
tation when it re-enacts a statute without change.” Lorillard
v. Pons, 434 U.S. 575, 580 (1978). When Congress enacted the
increased fee schedule in 2017, it could have narrowed the
courts’ definition of disbursements, but it refrained from do-
43
ing so.
41 Id. at 28.
42 The chart in CranGrow’s brief illustrates the difference in fees result-
ing from the change in law. See supra note 32; Appellee’s Br. 15. The chart
reveals that, employing CranGrow’s definition of disbursements, its 2018
quarterly fees would have totaled $46,800 under the old law. See Appel-
lee’s Br. 15. This amount increases to $199,925.64 under the new law. Id.
The total fees increase to $402,872.31 when the payments on the revolver
are included. Id.
43 Moreover, 28 U.S.C. § 1930(a)(6)(A) has one express exception; it pro-
vides that “[e]xcept as provided in subparagraph (B), … a quarterly fee
shall be paid to the United States trustee.” Section 1930(a)(6)(B) provides
for increased quarterly fees in fiscal years 2018 through 2022 for debtors
with quarterly disbursements of at least $1,000,000. Congress did not set
forth any other exceptions in subsection (a)(6) and, specifically, did not
except any kind of payment from the term “disbursements.” “The gen-
18 No. 18-3289
Additionally, CranGrow asserts that giving “disburse-
ments” a broad reading creates absurd results. We have ex-
plained, however, that the absurdity doctrine is not a license
to “make the law ‘better,’” Soppet v. Enhanced Recovery Co.,
LLC, 679 F.3d 637, 642 (7th Cir. 2012); rather, it deals with
texts that do not make sense as written “and thus need re-
pair work, rather than with statutes that seem poor fits for
the task at hand.” Jaskolski v. Daniels, 427 F.3d 456, 462 (7th
Cir. 2005). Here, a broad reading of disbursements does not
render the statute nonsensical.
In sum, “disbursements” has been interpreted broadly to
mean all payments by or on behalf of the debtor. The pay-
ments by CranGrow’s customers to CoBank were payments
made on behalf of CranGrow and resulted in the reduction
of CranGrow’s prepetition debt. The customer payments
therefore are disbursements for purposes of § 1930(a)(6) and
should have been included in the calculation of CranGrow’s
quarterly fees.
B.
CranGrow argues that, even if it owes quarterly fees
based on the payments to CoBank, those fees should be
( … continued)
eral rule of statutory construction is that the enumeration of specific ex-
clusions from the operation of a statute is an indication that the statute
should apply to all cases not specifically excluded.” Cash Currency Exch.,
Inc. v. Shine (In re Cash Currency Exch., Inc.), 762 F.2d 542, 552 (7th Cir.
1985). This canon of construction counsels against a judicially created
exception to disbursements.
No. 18-3289 19
waived. It submits that a waiver is permitted by 28 U.S.C.
§ 1930(f)(3). Section 1930(f)(3) provides: “This subsection
does not restrict the district court or the bankruptcy court
from waiving, in accordance with Judicial Conference policy,
fees prescribed under this section for other debtors and cred-
itors.” The Bankruptcy Court did not address this argument
because it determined that additional fees were not owed.
Critically, CranGrow does not come forward with any
authority, from our court or any other, that approves the
waiver of quarterly fees. Additionally, CranGrow has not
come forward with a Judicial Conference policy stating that
quarterly fees generally may be waived or that a waiver in
the circumstances presented here might be appropriate. In-
deed, the Judicial Conference policies with respect to the
waiver of fees do not mention quarterly fees. See 4 Adminis-
trative Office of the United States Courts, Guide to Judiciary
44
Policy § 820 (Apr. 10, 2018). Consequently, there is no basis
for a waiver of quarterly fees under § 1930(f)(3).
44 CranGrow has included in its appellate materials a recent report of the
Judicial Conference’s Committee on the Administration of the Bankrupt-
cy System, in which the Committee “noted the following issues with in-
terpreting the relevant statutes: (1) whether certain payments constitute
‘disbursements’ for purposes of calculating the quarterly fee (specifically
payments made by a chapter 11 debtor to its post-petition lender in con-
nection with a revolving line of credit) … .” See Appellee’s Supp. App. 42
& n.3. After noting these issues, the Report states that “[t]he Committee
will further consider these issues and consider whether the Conference
should make a recommendation to Congress regarding whether to reen-
act revised subsection (a)(6)(B).” Id. at 42. Thus, the Committee has not
made any policy recommendations, but simply is in the process of dis-
cussing these issues. Additionally, the Report’s summary advises that
20 No. 18-3289
C.
CranGrow submits, for the first time on appeal, that, in
applying the amended fee schedule of § 1930(a)(6)(B), the
Bankruptcy Court violated the uniformity requirement of
the Bankruptcy Clause of Article 1, section 8 of the United
States Constitution. Specifically, because the new fee sched-
ule was not implemented nationwide until October 2018,
some debtors, like CranGrow, were subjected to the in-
creased fees whereas other debtors were not. This nonuni-
45
formity, CranGrow asserts, violates Article 1, section 8.
The Trustee, however, maintains that CranGrow’s consti-
tutional challenge is untimely. He submits that CranGrow
had a full and fair opportunity to raise this issue before the
Bankruptcy Court, but failed to do so. Consequently, it has
forfeited the constitutional argument. We agree with the
Trustee.
( … continued)
“no recommendations presented herein represent the policy of the Judi-
cial Conference unless approved by the Conference itself.” Id. at 22 (capi-
talization removed). Thus, the Report itself confirms that it is not the
type of definitive Judicial Conference action necessary to undergird a §
1930(f)(3) waiver of fees.
45 Article 1, section 8 of the United States Constitution provides, in rele-
vant part, that “The Congress shall have Power … To establish an uni-
form Rule of Naturalization, and uniform Laws on the subject of Bank-
ruptcies throughout the United States.”
No. 18-3289 21
1.
To understand CranGrow’s uniformity argument, and
why it is untimely, some background on the U.S. Trustee
system is helpful. Congress initially instituted the Trustee
system as a pilot program in select districts. After the trial
period, Congress implemented it nationwide in 1986, with a
temporary exception for districts in Alabama and North
Carolina. Those districts initially were required to opt in by
1992. Eventually, however, this opt-in requirement was re-
46
moved altogether. In those districts, the functions of the
Trustee are performed by Bankruptcy Administrators, who
are employees of the Judicial Branch. When enacted, the
Trustee system was to be funded primarily through user
fees. Because the districts in Alabama and North Carolina
did not employ a Trustee, Trustee fees were not imposed in
47
those districts.
The disparity in the fees assessed by these separate sys-
tems came to the fore in St. Angelo v. Victoria Farms, Inc., 38
F.3d 1525 (9th Cir. 1994), amended, 46 F.3d 969 (9th Cir. 1995).
In St. Angelo, the debtor argued that “because the U.S. Trus-
tee program—and the fee system which supports it—ha[d]
not been implemented in Alabama and North Carolina, the
law governing the fee system [wa]s not uniform and there-
46See Derek F. Meek & Ellen C. Rains, Applicability of USTP Guidelines to
Bankruptcy Administrators, 33 Am. Bankr. Inst. J., Nov. 2014, at 16.
47 See Dan J. Schulman, The Constitution, Interest Groups, and the Require-
ments of Uniformity: The United States Trustee and the Bankruptcy Adminis-
trator Programs, 74 Neb. L. Rev. 91, 129–31 (1995).
22 No. 18-3289
fore must be struck down in its entirety.” Id. at 1529. The
Trustee defended the dual system on two grounds. The first
was that Congress implemented the two systems “in order
to study the effect of the U.S. Trustee system upon the ad-
ministration of bankruptcy proceedings.” Id. The court not-
ed, however, that there was no support for this proposition.
Id. Second, the Trustee submitted “that the U.S. Trustee pro-
gram serves a purely administrative function and therefore
is not constrained by the requirements of the Uniformity
Clause.” Id. at 1530. The court rejected this argument as well,
stating:
The statute clearly … falls within the scope
of the Uniformity Clause. The U.S. Trustees
have assumed the supervisory roles of the
bankruptcy judges. Indeed, the statute entrusts
U.S. Trustees with extensive discretion to ap-
point interim and successor trustees, monitor
and supervise bankruptcy proceedings, exam-
ine debtors, advise the bankruptcy courts, and
even, in some circumstances, to seek dismissal
of cases. Thus, the U.S. Trustees’ activities have
a direct effect upon the rights and liabilities of
both debtors and creditors.
The U.S. Trustee program is not only inti-
mately connected to the government’s regula-
tion of the relationship between creditor and
debtor, it also has a concrete effect upon the re-
lief available to creditors. Because debtors in
states other than North Carolina and Alabama
must pay higher fees for the supervision of
bankruptcy proceedings, the current system
No. 18-3289 23
reduces the amount of funds that the debtor
can ultimately pay to his creditors in the other
48 states.
St. Angelo, 38 F.3d at 1530–31 (citations omitted).
Turning to the remedy for the constitutional violation,
the Ninth Circuit struck down “the 1990 amendments to 28
U.S.C. § 1930,” which continued the Bankruptcy Administra-
tor program in the six districts in Alabama and North Caro-
lina. Id. at 1533. According to the court, it was this provision
“that guarantee[d] that creditors and debtors in the 48 other
states are governed by a[] dissimilar, more costly bankruptcy
system than members of the same groups in Alabama and
North Carolina.” Id.After St. Angelo, Congress amended 28 U.S.C. § 1930 to
allow the Judicial Conference of the United States to impose
in non-trustee districts fees equal to those imposed in trustee
48
districts. See 28 U.S.C. § 1930(a)(7). With the adoption of
§ 1930(a)(6)(B) in 2017, however, the disparity re-emerged.
By statute, the increase in fees for chapter 11 debtors in trus-
tee districts became effective January 1, 2018, and applied to
48 28 U.S.C. § 1930(a)(7) provides:
In districts that are not part of a United States trustee re-
gion as defined in section 581 of this title, the Judicial
Conference of the United States may require the debtor
in a case under chapter 11 of title 11 to pay fees equal to
those imposed by paragraph (6) of this subsection. Such
fees shall be deposited as offsetting receipts to the fund
established under section 1931 of this title and shall re-
main available until expended.
24 No. 18-3289
debtors then in bankruptcy as well as those who filed after
the effective date. The Judicial Conference did not adopt the
same fee schedule for the bankruptcy-administrator districts
until September 2018. When it did so, it made the new fee
schedule effective as of October 1, 2018, and did not apply
the new schedule to debtors already in bankruptcy. See Ad-
ministrative Office of the United States Courts, Report of the
Proceedings of the Judicial Conference of the United States
11 (Sept. 13, 2018).
2.
49
Based on St. Angelo, CranGrow maintains that the Judi-
cial Conference’s failure to institute the new fee schedule for
49 In addition to St. Angelo v. Victoria Farms, Inc., 38 F.3d 1525, 1529–33
(9th Cir. 1994), amended, 46 F.3d 969 (9th Cir. 1995), CranGrow’s position
finds support in a recent decision from the bankruptcy court in the
Western District of Texas. See In re Buffets, LLC, 597 B.R. 588 (Bankr. W.D.
Tex. 2019). In Buffets, the bankruptcy court determined that the Judicial
Conference’s decision to apply the new fee schedule in bankruptcy-
administrator districts
remedies the amendment’s violation of the Uniformity
Clause for future cases, but not in this case. Like the lack
of uniformity that originally existed between the two
programs, the gap in time between the imposition of the
quarterly fees in [trustee] districts and
[bankruptcy-administrator] districts is problematic. …
The Bankruptcy Judgeship Act of 2017 violated the
Constitution when it increased quarterly fees only in the
UST program. “Under any standard of review, when
Congress provides no justification for enacting a
non-uniform law, its decision can only be considered to
No. 18-3289 25
bankruptcy-administrator districts on the same timeline as
trustee districts violates the Uniformity Clause. The Trustee,
however, contends that this constitutional issue is not
properly before us. He asserts that CranGrow had a full and
fair opportunity to raise this issue before the Bankruptcy
Court, but failed to do so. For its part, CranGrow explains
that the Judicial Conference Report, which reflects the deci-
sion to apply the new fee schedule prospectively beginning
in October 2018, was not issued until September 13, 2018. At
that point, the fee issue was fully briefed before the Bank-
ruptcy Court; in fact, the Bankruptcy Court ruled on the
Trustee’s claim only eight days after the Conference Report
was issued. Thus, CranGrow submits, it did not have a
meaningful opportunity to raise the constitutional issue be-
tween the time that the Judicial Conference acted and the
time that the Bankruptcy Court ruled on the Trustee’s claim.
CranGrow’s assertion that it knew about the constitu-
tional issue only a few days before the Bankruptcy Court
ruled, however, only partially rings true. At oral argument,
counsel for CranGrow admitted that it was aware of the
( … continued)
be irrational and arbitrary.” St. Angelo, 38 F.3d at 1532.
While the quarterly fees now apply in BA districts from
October 1, 2018, forward, the increased fees ostensibly
owed by the Reorganized Debtors during the first three
quarters of 2018 violate the Uniformity Clause. There-
fore, the Reorganized Debtors are not required to pay
the $ 250,000 in fees for the first three quarters of 2018,
but rather the uniform quarterly fee of $ 30,000.
In re Buffets, 597 B.R. at 594–95.
26 No. 18-3289
St. Angelo case and of a potential constitutional problem
50
much earlier. Counsel simply assumed that the Judicial
51
Conference would act to cure the fee disparity.
CranGrow further submits that, even if it had an oppor-
tunity to raise the constitutional argument and failed to do
so, we nevertheless have the discretion to address issues
raised for the first time on appeal. See Kaczmarek v. Rednour,
50 Oral Argument at 20:36–21:45 (counsel for CranGrow acknowledging
that “[i]t’s possible that [CranGrow] could have known there was a prob-
lem” even before the Bankruptcy Court handed down its decision and
agreeing with the court that counsel relied on the fact that, when the Ju-
dicial Conference acted with respect to the bankruptcy-administrator
districts, the Conference would correct the nonuniformity).
51 Counsel also noted that it is not apparent from the language of
§ 1930(a)(7) that the Judicial Conference had to take the affirmative step
of re-voting to increase fees in bankruptcy-administrator districts every
time that there is a change to the schedule in § 1930(a)(6). The plain lan-
guage of § 1930(a)(7) is permissive, not mandatory, see id. (stating that
“the Judicial Conference of the United States may require the debtor in a
case under Chapter 11 of title 11 to pay fees equal to those imposed by
paragraph (6) of this subsection” (emphasis added)), allowing the Judi-
cial Conference to implement fee increases commensurate with
§ 1930(a)(6) as it deems appropriate. Nevertheless, the 2001 report of the
meeting at which the Judicial Conference implemented § 1930(a)(7) sug-
gests that the Judicial Conference may have intended for its one-time
vote to encompass all future fee increases. See Administrative Office of
the United States Courts, Reports of the Proceedings of the Judicial Con-
ference of the United States 46 (Mar. 14, 2001) (“To implement this stat-
ute, the Conference approved a Bankruptcy Committee recommendation
that such fees be imposed in bankruptcy administrator districts in the
amounts specified in 28 U.S.C. § 1930, as those amounts may be amend-
ed from time to time.”).
No. 18-3289 27
627 F.3d 586, 595 (7th Cir. 2010). “In our adversary system,
… we follow the principle of party presentation. That is, we
rely on the parties to frame the issues for decision and assign
to courts the role of neutral arbiter of matters the parties pre-
sent.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). We
operate on “the premise that the parties know what is best
for them[] and are responsible for advancing the facts and
arguments entitling them to relief.” Id. at 244 (quoting Castro
v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring
in part and concurring in judgment)). Thus, although we
have the discretion to determine “what questions may be
taken up and resolved for the first time on appeal,” Singleton
v. Wulff, 428 U.S. 106, 121 (1976), we exercise that discretion
“sparingly,” In re Sw. Airlines Voucher Litig., 799 F.3d 701, 714
(7th Cir. 2015). Indeed, we usually only do so when “failure
to present a ground to the district court has caused no one—
not the district judge, not us, not the appellee—any harm of
which the law ought to take note,” Amcast Indus. Corp. v.
Detrex Corp., 2 F.3d 746, 749 (7th Cir. 1993).
We believe it would be particularly inappropriate to en-
tertain CranGrow’s constitutional challenge under the cir-
cumstances presented here. First, St. Angelo made litigants—
including CranGrow—generally aware that constitutional
problems would arise if bankruptcy fees were imposed in
trustee, but not bankruptcy-administrator, districts. When
Congress amended § 1930(a)(6) in late 2017, that problem
arose. CranGrow began paying nonuniform fees early in
2018 and began litigating the calculation of those fees in
mid-2018. Nevertheless, despite the potential constitutional
issue, CranGrow kept silent. Indeed, even when the Judicial
Conference did not cure fully the nonuniformity—and the
constitutional problem became concrete—CranGrow did not
28 No. 18-3289
bring the issue before the Bankruptcy Court. Instead, it was
the bankruptcy judge who mentioned the constitutional
problem for the first time in her certification for direct re-
52
view. CranGrow had the opportunity to raise the constitu-
tional issue before the Bankruptcy Court, but simply failed
to do so. Second, the Trustee has been denied the opportuni-
ty to address the issue; the Bankruptcy Court has been de-
nied the opportunity to weigh on the issue; and we have
been denied the benefit of a full vetting on an issue of consti-
tutional dimension. Finally, in raising the issue of lack of
uniformity, CranGrow is attempting to enlarge its rights,
53
specifically, to recover fees already paid to the Trustee.
Given all of these factors—CranGrow’s opportunity to raise
the issue before the Bankruptcy Court, the harm to the Trus-
tee and to the court system, and CranGrow’s effort to en-
52 Our grant of the petition for direct review of the Bankruptcy Court’s
order, which addresses only the issue whether the direct customer pay-
ments to CoBank are disbursements, cannot be read as permission to
raise issues on appeal that were not argued and disposed of by the Bank-
ruptcy Court.
53 As previously noted, see supra p.9 & note 32, the Bankruptcy Court
held that CranGrow properly excluded payments made by its customers
to CoBank from the calculation of its quarterly fees. Excluding those
payments from the calculation of the quarterly fees saved CranGrow
approximately $200,000 over the course of 2018. See supra note 42; Appel-
lee’s Br. 15. However, if we were to hold that the new fee schedule had
been applied in an unconstitutional manner to CranGrow, CranGrow
would be able to recoup an additional $150,000 in fees.
No. 18-3289 29
large its rights despite its prior silence—we decline to enter-
54
tain CranGrow’s constitutional challenges.
Conclusion
For the foregoing reasons, we hold that the payments of
CranGrow’s customers to CoBank constituted disburse-
ments, which should have been included in the calculation
of quarterly fees paid to the Trustee. We also decline to reach
CranGrow’s constitutional challenges to the assessment of
fees. The judgment of the Bankruptcy Court is reversed, and
the action is remanded to the Bankruptcy Court for further
proceedings consistent with this opinion. The Trustee may
recover the costs of this appeal.
REVERSED and REMANDED
54 CranGrow also attacks the quarterly fee payment as an unconstitu-
tional user fee. See Appellee’s Br. 20–21. This argument was apparent
and available to CranGrow during the pendency of its case before the
Bankruptcy Court, but CranGrow simply failed to raise it. We therefore
will not entertain it on appeal. See, e.g., Bank of Am., N.A. v. Veluchamy (In
re Veluchamy), 879 F.3d 808, 821 (7th Cir. 2018) (“It is well established that
a party waives the right to argue an issue on appeal if he failed to raise
that issue before the lower court.”).