In Re: Roger Evans v. Kathleen McCallister ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: ROGER A. EVANS; No. 22-35216
LORI A. STEEDMAN,
Debtors, D.C. No.
4:20-cv-00112-
------------------------------ DCN
ROGER A. EVANS; LORI A.
STEEDMAN, OPINION
Appellants,
v.
KATHLEEN A. MCCALLISTER,
Chapter 13 Trustee,
Appellee.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Argued and Submitted February 7, 2023
Portland, Oregon
Filed June 12, 2023
Before: MILAN D. SMITH, JR., DANIELLE J.
FORREST, and JENNIFER SUNG, Circuit Judges.
2 EVANS V. MCCALLISTER
Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Bankruptcy
The panel reversed the district court’s judgment
reversing the bankruptcy court’s order requiring a standing
Chapter 13 trustee to return her percentage fee when the case
was dismissed prior to confirmation.
Joining the Tenth Circuit, the panel held that the trustee
was not entitled to a percentage fee of plan payments as
compensation for her work in the Chapter 13 case. 28 U.S.C.
§ 586(e)(2) provides that the trustee shall “collect” the
percentage fee from “payments . . . under plans” that she
receives. 11 U.S.C. § 1326(a)(1) provides for the debtor to
make payments in the amount “proposed by the plan to the
trustee.” Section 1326(a)(2) provides that the trustee shall
retain these payments “until confirmation or denial of
confirmation.” This section further provides that if a plan is
not confirmed, the trustee shall return to the debtor any
payments not previously paid to creditors and not yet due
and owing to them. Section 1326(b) provides that, before or
at the time of each payment to creditors under the plan, the
trustee shall be paid the percentage fee under § 586(e)(2).
The panel held that, reading these statutes together,
“payments . . . under plans” in § 586 refers only to payments
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EVANS V. MCCALLISTER 3
under confirmed plans. Prior to confirmation a trustee does
not “collect” or “collect and hold” fees under § 586, but
instead “retains” payments “proposed by the plan” pursuant
to § 1326(a)(2). If a plan is not confirmed, then § 1326(a)(2)
requires return to the debtor of payments “proposed by the
plan.” If a plan is confirmed, then § 1326(b) provides for
payment of the percentage fee to the trustee. Thus, under the
plain meaning of the statutory text, a trustee is not paid her
percentage fee if a plan is not confirmed. The panel
concluded that statutory canons of construction, such as the
rule against superfluities, and the provisions’ amendment
history confirmed its reading of the statutes. And policy
arguments made by the trustee were not enough to overcome
the plain language and context of the relevant statutory
provisions.
COUNSEL
Alexandra O. Caval (argued), Caval Law Office P.C., Twin
Falls, Idaho, for Appellants.
Mahesha Subbaraman (argued), Subbaraman PLLC,
Minneapolis, Minnesota; Jeffrey P. Kaufman, Office of
Kathleen McCallister, Meridian, Idaho; for Appellee.
Tara Twomey, National Consumer Bankruptcy Rights
Center, San Jose, California; Matthew D. Resnik, RHM Law
LLP, Encino, California; for Amici Curiae National
Consumer Bankruptcy Rights Center and National
Association of Consumer Bankruptcy Attorneys.
Henry E. Hildebrand III, Office of the Chapter 13 Trustee,
Nashville, Tennessee, for Amicus Curiae the National
Association of Chapter Thirteen Trustees.
4 EVANS V. MCCALLISTER
OPINION
M. SMITH, Circuit Judge:
In this case we decide whether a standing trustee in a
Chapter 13 bankruptcy is paid her percentage fee when a
case is dismissed prior to confirmation. For the reasons
explained in this opinion, we join the Tenth Circuit in
holding that she is not.
STATUTORY FRAMEWORK
Chapter 13 bankruptcies provide debtors receiving a
regular income an opportunity to pay off their debts while
retaining their property. Bullard v. Blue Hills Bank, 575
U.S. 496, 498 (2015). To commence this type of
bankruptcy, a debtor must file a petition with the court and—
either at that time, or fourteen days thereafter—a proposed
plan that outlines how he will pay off debts using his future
income. Id.; 11 U.S.C. §§ 1321–1322; Fed. R. Bankr. P.
3015. Within thirty days of filing the plan or petition
(whichever is earlier), the debtor must begin making plan
payments to a Chapter 13 trustee. 11 U.S.C. § 1326(a)(1).1
After the plan is filed, the bankruptcy court must assess
whether the proposed plan meets statutory standards to be
“confirm[ed],” which is bankruptcy parlance for
“approved.” Id. § 1325. If the court confirms the plan, the
trustee begins disbursing payments to creditors under the
1
11 U.S.C. § 1326(a)(1) refers to payments that must be made “not later
than 30 days after the date of the filing of the plan or the order for relief.”
The filing of a voluntary Chapter 13 petition constitutes an order of
relief, under which debtors may temporarily pause payments to creditors
while the petition is pending. 11 U.S.C. § 301(b).
EVANS V. MCCALLISTER 5
terms of the plan. Id. § 1326(a). If the court denies
confirmation, the debtor may revise his plan to meet the
requisite standards. See Bullard, 575 U.S. at 498.
Alternatively, the debtor may move to dismiss his Chapter
13 case. 11 U.S.C. § 1307(b).
In most federal judicial districts, there is a “standing
trustee” who supervises all the Chapter 13 cases in the
district and plays a critical role in shepherding petitions
through the bankruptcy process. See id. § 1302(a); 28 U.S.C.
§§ 581, 586(b). Among other things, the trustee collects the
debtor’s payments, ensures that payments are timely made
to creditors, and objects (when necessary) to plan
confirmation. Id. § 1302(b) (cross-referencing the duties of
Chapter 7 trustees under section 704(a)). As compensation
for their work, standing trustees receive a percentage fee of
plan payments. 28 U.S.C. § 586(e)(2). At issue here is
whether a standing trustee is to be paid her percentage fee
when a debtor dismisses his bankruptcy case prior to
confirmation. Relevant to that question are three interrelated
statutory provisions: 28 U.S.C. § 586(e)(2); 11 U.S.C. §
1326(a)(1); and 11 U.S.C. § 1326(b).
First, Section 586 of 28 United States Code describes the
duties of the standing trustee. Relevant here, Section
586(e)(2) discusses the percentage-fee system:
[The trustee] shall collect such percentage fee
from all payments received by such
individual under plans in the cases under
subchapter V of chapter 11 or chapter 12 or
13 of title 11 for which such individual serves
as standing trustee.
6 EVANS V. MCCALLISTER
Second, Section 1326 of 11 United States Code lays out
the mechanics of Chapter 13 plan payments. Section
1326(a) explains that debtors must begin making payments
before confirmation, and states the effect of plan
confirmation or denial:
(a)(1) Unless the court orders otherwise, the
debtor shall commence making payments not
later than 30 days after the date of the filing
of the plan or the order for relief, whichever
is earlier, in the amount—
(A) proposed by the plan to the
trustee; . . . .
(2) A payment made under paragraph (1)(A)
shall be retained by the trustee until
confirmation or denial of confirmation. If a
plan is confirmed, the trustee shall distribute
any such payment in accordance with the
plan as soon as is practicable. If a plan is not
confirmed, the trustee shall return any such
payments not previously paid and not yet due
and owing to creditors pursuant to paragraph
(3) to the debtor after deducting any unpaid
claim allowed under section 503(b).2
2
The Chapter 13 trustee’s fee is not an administrative expense under
Section 503(b), and the trustee has not argued that it is. See In re Rivera,
268 B.R. 292, 294 (Bankr. D.N.M.), aff’d sub nom, Skehen v. Miranda
(In re Miranda), 285 B.R. 344 (B.A.P. 10th Cir. 2001) (unpublished).
EVANS V. MCCALLISTER 7
Finally, Section 1326(b) of 11 United States Code follows
subsection (a) and cross-references Section 586 of 28 United
States Code. It provides:
(b) Before or at the time of each payment to
creditors under the plan, there shall be
paid[]. . . (2) if a standing trustee appointed
under section 586(b) of title 28 is serving in
the case, the percentage fee fixed for such
standing trustee under section 586(e)(1)(B)
of title 28.
FACTUAL BACKGROUND AND PRIOR
PROCEEDINGS
In this case, Roger Evans and Lori Steedman (Debtors)
filed a Chapter 13 bankruptcy plan. The plan provided that
the fees of the standing trustee, Kathleen McCallister
(Trustee), would be “governed and paid as provided by 28
U.S.C. § 586.” Consistent with 11 U.S.C. § 1326(a)(1),
Debtors began making payments to Trustee according to the
proposed plan, and Trustee collected a percentage fee from
each payment as compensation. Before the plan was
confirmed, however, Debtors voluntarily dismissed their
case.
After Debtors dismissed their case, they filed a “motion
to disgorge fees,” arguing that Trustee was obligated to
return to them any fees she had collected because 11 U.S.C.
§ 1326(a) requires fees to be refunded if a plan is not
confirmed. The bankruptcy court agreed with Debtors and
ordered Trustee to return the fees. The district court
reversed. Debtors timely appealed.
8 EVANS V. MCCALLISTER
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1).
We stand in the same position as did the district court in
reviewing the bankruptcy court’s order. See In re Ctr.
Wholesale, Inc., 759 F.2d 1440, 1445 (9th Cir. 1985). We
review the bankruptcy court’s conclusions of law de novo.
In re Pizza of Haw., Inc., 761 F.2d 1374, 1377 (9th Cir.
1985).
ANALYSIS
The question presented by this case is a matter of first
impression in our circuit.3 It requires us to interpret the
previously described statutes using principles of statutory
construction. “Statutory construction ‘is a holistic
endeavor,’ and, at a minimum, must account for a statute’s
full text, language as well as punctuation, structure, and
subject matter.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 439, 455 (1993) (quoting United Sav.
Assn. of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484
U.S. 365, 371 (1988)).
I. Plain Text
We begin with the statutory text. See United States v.
Pacheco, 977 F.3d 764, 767 (9th Cir. 2020). “The plain
meaning of the text controls unless it is ambiguous or leads
to an absurd result.” Id.3
The only other circuit to address it is the Tenth Circuit. See In re Doll,
57 F.4th 1129 (10th Cir. 2023). An appeal presenting the same question
is also pending before the Second Circuit. See Soussis v. Macco, No. 22-
155 (2d Cir. argued Feb. 15, 2023).
EVANS V. MCCALLISTER 9
A. Trustee and Debtors’ Interpretations
The parties both argue that a proper interpretation of the
word “collect” in 28 U.S.C. § 586(e)(2) controls this case.4
The relevant language reads: “[The trustee] shall collect such
percentage fee from all payments received by such
individual under plans . . . for which such individual serves
as standing trustee.” 28 U.S.C. § 586(e)(2) (emphasis
added).
According to Trustee, Section 586 directs her to
collect—and keep—fees from payments made by debtors as
she receives them, whether pre- or post- plan confirmation.
For support, she argues that the word “collect” means “to
receive payment.” Collect, BLACK’S LAW DICTIONARY (5th
ed. 1979). Trustee also notes other laws where Congress
qualified the word “collect” and argues that it purposely did
not do so here. See, e.g., 28 U.S.C. § 1914(b) (“The clerk
shall collect . . . such additional fees only as are prescribed
. . . .” (emphasis added)). In her view, the unqualified use of
the word “collect” indicates congressional intent for trustees
to irrevocably collect their fees when they receive each
payment prior to confirmation.
Debtors argue that if “collect” is read the way Trustee
suggests—i.e., “irrevocably collect”—a conflict results
between 28 U.S.C. § 586 and 11 U.S.C. § 1326(a)’s
directive to return payments to the debtor if a plan is not
4
Both Debtors and Trustee make a number of other arguments which we
do not find persuasive. For example, Trustee also relies on the
“unqualified” nature of the words “under plans” in Section 586 to argue
that she may extract her percentage fee not only from confirmed plan
payments, but unconfirmed plan payments as well. But as discussed
infra, such a microscopic approach to interpretation ignores the broader
context of the statutory scheme.
10 EVANS V. MCCALLISTER
confirmed. To avoid this conflict, Debtors urge us to adopt
the bankruptcy court’s interpretation. Under that reading,
Section 586(e)(2) directs the trustee to “collect and hold”
fees from preconfirmation payments pending confirmation,
while Section 1326(a) tells the trustee how to disburse
payments once a decision on confirmation is made. If a plan
is confirmed, the payments (and fees) are distributed in
accordance with the plan; if a plan is not confirmed, the
payments (and fees) are returned to the debtors.
Trustee and Debtors’ interpretations suffer from the
same basic flaw: they both require us to add words to the
statute that are not there.5 Trustee wants us to read “collect”
as “irrevocably collect.” Debtors want us to read “collect”
as “collect and hold.” We decline the invitation to do either.
See Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004) (declining
to “read an absent word into the statute”); Doll, 57 F.4th at
1144 (noting that trustee’s argument amounted to “reading
the word ‘irrevocable’ into the statute as an adjective
defining ‘collect’” and refusing to do so). The word
5
Moreover, the Debtors’ reliance on Section 1326(a) as requiring return
of payments (and fees) when a plan is “not confirmed” is difficult to
square with the simple fact that the plan in this case was not “not
confirmed,” i.e., denied—it was voluntarily dismissed. See Bullard, 575
U.S. at 503 (distinguishing between legal effects of plan confirmation
and denial and case dismissal). As Trustee notes, Section 1326(a) only
applies to denial of plan confirmation. Section 1326(a)(2) begins by
instructing the trustee to retain payments “until confirmation or denial of
confirmation.” The next two sentences start with the phrase “if a plan is
confirmed,” and “if a plan is not confirmed,” suggesting that Congress
equated a plan “not [being] confirmed” with “denial of confirmation.”
In this case, Debtors’ plan had been neither confirmed nor denied when
they voluntarily dismissed their case; therefore, even assuming that the
word “payments” include the percentage fee, Section 1326(a)’s return
mandate was not triggered.
EVANS V. MCCALLISTER 11
“collect,” in isolation, does not answer the question in this
case.
B. NCBRC’s Interpretation
The better approach, as proposed by amicus National
Consumer Bankruptcy Rights Center and National
Association of Consumer Bankruptcy Attorneys (NCBRC),
is to read 28 U.S.C. § 586 and 11 U.S.C. § 1326 together.
See In re W. States Wholesale Nat. Gas Antitrust Litig., 715
F.3d 716, 731 (9th Cir. 2013) (“[S]tatutory provisions should
not be read in isolation, and the meaning of a statutory
provision must be consistent with the structure of the statute
of which it is a part.”), aff’d sub nom. Oneok, Inc. v. Learjet,
Inc., 575 U.S. 373 (2015). NCBRC contends that the phrase
“payments . . . under plans” in Section 586, when read in the
larger context of the Bankruptcy Code, refers only to
payments under confirmed plans, rendering the provision
irrelevant to the pre-confirmation period. NCBRC suggests
that to the extent this case implicates pre-confirmation
payments, the place to look is instead Sections 1326(a) and
(b).
Unlike Section 586, which refers to “payments . . . under
plans,” Section 1326(a)(1)(A) refers to payments “proposed
by the plan.” And it instructs the debtor to commence
making “payments . . . in the amount[] . . . proposed by the
plan” no later than thirty days after the date of filing of the
plan or the order for relief, whichever is earlier.
Accordingly, prior to confirmation, a trustee does not
“collect” or “collect and hold” fees under Section 586, but
instead “retains” payments “proposed by the plan” pursuant
to Section 1326(a)(2). See § 1326(a)(2) (“[P]ayment[s]
made under paragraph (1)(A) shall be retained by the trustee
until confirmation or denial of confirmation.”) If a plan is
12 EVANS V. MCCALLISTER
not confirmed, Section 1326(a) requires return of “any such
payments”—again referring to payments “proposed by the
plan”—to the debtor, after deducting amounts previously
paid and due and owing to creditors. Id. If a plan is
confirmed, the trustee is to distribute payments in
accordance with the plan. Id. §1326(a)(2).
Plan confirmation triggers one last and important
provision, Section 1326(b). According to NCBRC, if a plan
is confirmed—and only if a plan is confirmed—does 1326(b)
require that the trustee “be paid” her percentage fee “[b]efore
or at the time of each payment to creditors under the plan.”
Because payments are made “to creditors under the plan”
only once a plan is confirmed, id. § 1326(a)(2), Section
1326(b) indicates that a standing trustee can be paid her
percentage fee only after confirmation. Section 1326(b) also
cross-references Section 586, which provides the source of
and the amount (but not the timing) of trustee fees.
We generally agree with NCBRC’s construction of the
relevant statutes, which renders harmonious an otherwise
fragmented scheme. See United States v. Millis, 621 F.3d
914, 917 (9th Cir. 2010) (“[W]ords must be read in their
context, with a view to their place in the overall regulatory
scheme, and to ‘fit, if possible, all parts into an harmonious
whole.’”) (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000)). The plain text of Section
1326(b) unambiguously shows that it is the specific
provision governing when a trustee “shall be paid”: “before
or at the time of each payment to creditors under the plan,”
which necessarily means post-confirmation of a plan.6
6
Trustee attempts to leverage the phrase “before or at the time of each
payment to creditors under the plan,” in 1326(b) by deleting the words
“or at the time” and arguing that 1326(b) instructs that trustees should be
EVANS V. MCCALLISTER 13
Section 1326(a) only governs disposition of “payments . . .
proposed by the plan,” and Section 586 only provides that
when a trustee does collect her fee pursuant to 1326(b), she
does so by “collect[ing]” her fee “from all payments
received” under confirmed plans. See 28 US.C. § 586(e)(2)).
Moreover, NCBRC’s interpretation is consistent with the
opinion of the only other circuit to reach this issue. In Doll,
the Tenth Circuit read Section 586 as “only address[ing] the
source of funds that may be accessed to pay standing trustee
fees,” while reading Section 1326 as “address[ing] Chapter
13 payments and what happens to that money, including . . .
what happens to such payments if a Chapter 13 plan is not
confirmed.” 57 F.4th at 1140 (emphasis added). Like our
sister circuit, we conclude that a trustee is not paid her
percentage fee if a plan is not confirmed.7 Id. at 1141. In
this case, because a plan was never confirmed, Trustee must
return the fees she collected prior to dismissal.
paid “before” confirmation. But “[a] court does not get to delete
inconvenient language and insert convenient language to yield the
court’s preferred meaning.” Borden v. United States, 141 S. Ct. 1817,
1829 (2021). Instead, reading all of the words in Section 1326(b) shows
that the percentage fee “shall be paid” “before or at the time of each
payment to creditors under the plan.” Consequently, if a “payment[] to
creditors under the plan” never occurs because a plan is never confirmed,
it follows that a trustee does not get paid at all. See, e.g., Doll, 57 F.4th
at 1145.
7
Although Doll did not address the precise argument raised by NCBRC
here—that payments “under plans” in Section 586 only refers to
payments under confirmed plans, 57 F.4th at 1144 n.9—we agree with
its ultimate conclusion that “[Section] 1326(a)(2) requires the trustee to
return . . . all of the pre-confirmation payments he receives” if a plan is
not confirmed, “without first deducting his fee.” Doll, 57 F.4th at 1141
(emphasis in original).
14 EVANS V. MCCALLISTER
II. Other Sources of Meaning
To the extent doubt remains about the meaning of
Sections 586 and 1326, statutory canons of construction,
such as the rule against superfluities, and the provisions’
amendment history, confirm our reading.
“[T]he rule against superfluities instructs courts to
interpret a statute to effectuate all its provisions, so that no
part is rendered superfluous.” Hibbs v. Winn, 542 U.S. 88,
89 (2004). Debtors argue that the difference between
Section 1326(a) in Chapter 13 and analogous provisions that
govern trustee payments in Chapter 12 and Chapter 11,
Subchapter V bankruptcies reveals that Congress intended
for trustees in Chapter 13 bankruptcies to return their fees in
the event of dismissal.
Section 1226 of Chapter 12 establishes the relationship
between a trustee fee and confirmation:
(a) Payments and funds received by the
trustee shall be retained by the trustee
until confirmation or denial of
confirmation of a plan. If a plan is
confirmed, the trustee shall distribute any
such payment in accordance with the
plan. If a plan is not confirmed, the
trustee shall return any such payments to
the debtor, after deducting—
...
(2) if a standing trustee is serving in the
case, the percentage fee fixed for such
standing trustee.
EVANS V. MCCALLISTER 15
11 U.S.C. § 1226(a) (emphasis added). Section 1194(a) of
Chapter 11, Subchapter V, also titled “Payments,” provides
as follows:
(a) Retention and distribution by trustee.—
Payments and funds received by the
trustee shall be retained by the trustee
until confirmation or denial of
confirmation of a plan. If a plan is
confirmed, the trustee shall distribute any
such payment in accordance with the
plan. If a plan is not confirmed, the
trustee shall return any such payments to
the debtor after deducting—
...
(3) any fee owing to the trustee.
11 U.S.C. § 1194(a) (emphasis added). Both provisions
have language almost identical to Section 1326(a), but
explicitly mandate that fees be paid to trustees regardless of
plan confirmation. Debtors thus argue that reading Section
1326(a) to require fee deduction absent similar language
would render those instructions in 1226(a) and 1194(a)
surplusage.
The analogous provisions in Chapter 12 and Chapter 11,
Subchapter V, are evidence in Debtors’ favor. They show
that Congress knew how to explicitly require payment of
trustee fees in the event of non-confirmation—by requiring
“deduct[ion]” of such fees—and suggest that it intentionally
chose not to require the same in the Chapter 13 context. Cf.
Hamilton v. Lanning, 560 U.S. 505, 514 (2010) (“[W]e need
look no further than the Bankruptcy Code to see that when
16 EVANS V. MCCALLISTER
Congress wishes to mandate simple multiplication, it does so
unambiguously—most commonly by using the term
‘multiplied.’”).
The amendment history of these provisions also supports
Debtors’ and NCBRC’s interpretation. Congress has
amended various provisions governing Chapter 13 payments
and trustee fees several times. For example, in 1994,
Congress amended Section 1326(a)(2) to require payments
to creditors to begin “as soon as [] practicable” after
confirmation. Bankruptcy Reform Act of 1994, Pub. L. No.
103-394, § 307, 108 Stat. 4106. In 2005, Congress amended
Section 1326(a)(2) once more by, inter alia, adding the
words “not previously paid and not yet due and owing to
creditors pursuant to paragraph (3).” Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005, Pub. L.
No. 109-8, §309, 119 Stat. 23.
Congress thus has had numerous opportunities to add
language explicitly permitting a trustee to receive her fees
even if a plan is not confirmed. Its failure to do so strongly
evinces its intent not to require payment of trustee fees when
a plan is not confirmed. See Guerrero-Lasprilla v. Barr, 140
S. Ct. 1062, 1071–72 (2020); Lindh v. Murphy, 521 U.S.
320, 330 (1997) (“[N]egative implications raised by
disparate provisions are strongest when the portions of a
statute treated differently had already been joined together
and were being considered simultaneously when the
language raising the implication was inserted.”).
III. Policy
Finally, the parties make several policy arguments.
Trustee insists that this dispute risks ruining the “the
financial survival of Chapter 13 trustees throughout the
Ninth Circuit.” According to her, permitting those debtors
EVANS V. MCCALLISTER 17
who voluntarily dismiss their case prior to confirmation to
avoid paying trustee fees “diminishes the total funds
available to Chapter 13 trustees to help all debtors.” Fee
avoidance, Trustee argues, will unfairly shift fees onto the
remaining Chapter 13 debtors as a result. Moreover, Trustee
argues that holding in Debtors’ favor would incentivize
trustees to violate their duty to object to plans prior to
confirmation, knowing that they only get paid if a plan is
confirmed.
In response, Debtors argue that Trustee overstates the
stakes of this case. They note that, in practice, standing
trustees had not been paid until plan confirmation from 1998
to 2012. See DOJ., Exec. Office for the U.S. Tr., Handbook
for Chapter 13 Standing Trustees 11-2 (1998) (“Percentage
fees are to be paid to the standing trustee’s expense account
at the time of disbursements under the plan and not at the
time of receipts of the payments by the standing
trustee . . . .”). This policy was only changed recently, first
in 2012 to permit fee collection prior to confirmation, and
then in 2014 to permit collection of fees upon receipt of
payment. See Martha Hallowell, Successful Projects in 2014
Include Training, Percentage Fee Policy and Unsecured
Claims Review, Exec. Office for U.S. Trs.,
https://www.justice.gov/ust/file/nactt_201503.pdf/download.
Notably, the current Chapter 13 Trustee Handbook
contemplates the possibility of different practices based on
different jurisdictions: “If the plan is dismissed or converted
prior to confirmation, the standing trustee must reverse
payment of the percentage fee that had been collected upon
receipt if there is controlling law in the district requiring such
18 EVANS V. MCCALLISTER
reversal . . . .” DOJ, Exec. Office for the U.S. Tr., Handbook
for Chapter 13 Standing Trustees 2-4 (2012).8
There is no doubt that standing trustees perform
important work in Chapter 13 bankruptcies. But “[i]t is
hardly this [c]ourt’s place to pick and choose among
competing policy arguments . . . selecting whatever outcome
seems to us most congenial, efficient, or fair. Our license to
interpret statutes does not include the power to engage in . .
. judicial policymaking.” United States v. Nishiie, 996 F.3d
1013, 1028 (9th Cir. 2021) (citing Pereida v. Wilkinson, 141
S. Ct. 754, 766–67 (2021)), cert. denied, 142 S. Ct. 2653
(2022). Trustee’s policy arguments are not enough to
overcome the plain language and context of the relevant
statutory provisions, which indicate that standing trustees
are only to be paid once a plan is confirmed.
CONCLUSION
For the foregoing reasons, the district court’s judgment
is REVERSED.
8
No one argues that the interpretation in the Trustee Handbook should
be given deference under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.
837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944)).