1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0451P (6th Cir.)

File Name: 03a0451p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

In re: DALE R. BROOKOVER;

MONTGOMERY FARMS; JACK

GIULITTO,

Debtors.

________________________

IRA BODENSTEIN, United

States Trustee,

Appellant.

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No. 02-3237

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

Nos. 01-01129; 01-01130; 01-01131—

Marilyn Shea-Stonum, Bankruptcy Judge;

David D. Dowd, Jr., District Judge.

Argued: October 21, 2003

Decided and Filed: December 19, 2003 

Before: KEITH, DAUGHTREY, and GILMAN, Circuit

Judges.

2 In re Brookover, et al. No. 02-3237

_________________

COUNSEL

ARGUED: William Kanter, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellant. ON BRIEF: William Kanter, Wendy Keats,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellant.

_________________

OPINION

_________________

DAMON J. KEITH, Circuit Judge. This appeal arises from

three cases filed under Chapter 12 of the Bankruptcy Code,

11 U.S.C. § 1201 et seq., in the bankruptcy court of the

Northern District of Ohio, Eastern Division. The United States

Trustee (“UST”) appeals the district court’s order affirming the

bankruptcy court’s order refusing to accept resignation of the

standing Chapter 12 trustee and setting forth procedures for

such resignation. For the reasons set forth below, we

REVERSE the district court’s order. 

I. BACKGROUND

The trustee for each case was Michael V. Demczyk

(“Demczyk”), the standing Chapter 12 trustee appointed by the

UST pursuant to 28 U.S.C. § 586(b) and 11 U.S.C. § 1202. In

October 2000, Demczyk tendered his resignation as standing

trustee in these cases to the UST, who accepted it and notified

the bankruptcy court that a successor trustee would be

appointed. In accord with the UST’s standard practice to

provide prompt notice to the courts and all interested parties

regarding the resignation of a trustee and the assignment of a

successor, on November 7, 2000, the UST sent a letter to

Demczyk, with copies to the bankruptcy judges, clerk and

deputy clerks in charge of the four court locations for the
No. 02-3237 In re Brookover, et al. 3

Northern District of Ohio, Eastern Division, and certain

individuals in the UST's office in Cleveland. In the letter, the

UST accepted the resignation of Demczyk. The letter read, in

part: 

I have received your letter of resignation as Chapter 12

Standing Trustee dated October 31, 2000, which indicates

that the resignation will be effective November 30, 2000.

I accept your resignation and thank you for your years of

service as the Chapter 12 Standing Trustee for the Eastern

Division of the Northern District of Ohio. There have

been insufficient Chapter 12 case filings over the past few

years to support a Standing Trustee operation, and we

appreciate your willingness to administer these cases for

minimal compensation. 

Notice will be filed with the Bankruptcy Court in each

case of your resignation and my appointment as Chapter

12 interim trustee. My staff will be in contact with you

regarding the transition of funds and files to our office.

We anticipate your full cooperation in this regard and in

the filing of your final annual report.

J.A. at 12. On the same date, November 7, 2000, the UST sent

a letter to the bankruptcy judge, with a copy sent to Joyce

Garner, Deputy Clerk in Charge in Akron. The letter read, in

part: 

Enclosed for your information is a copy of my letter

accepting the resignation of Michael Demczyk as Chapter

12 Standing Trustee for the Eastern Division of the

Northern District of Ohio. There are no longer sufficient

Chapter 12 cases to justify a Standing Trustee under 28

U.S.C. § 586(b). On the active Chapter 12 cases, we

anticipate appointing successor individual case trustees

under 11 U.S.C. § 1202(a). These will be administered in

a similar manner as Chapter 7 cases.

4 In re Brookover, et al. No. 02-3237

J.A. at 13. Although the UST did not “file” the letters with the

court, the court itself made the letters part of the court record.

Information on the UST’s plan to name a successor trustee was

given to the court. 

On November 28, 2000, the bankruptcy court, sua sponte,

issued an identical Order in each of the cases, which was

served on Demczyk, the UST, and the attorneys for the

Chapter 12 debtors, stating, in pertinent part: 

Michael V. Demczyk is the Standing Chapter 12 Trustee

in this case. The Court recently received correspondence

from Donald M. Robiner, United States Trustee,

Ohio/Michigan Region 9, which consists of two letters

dated November 7, 2000 (the "Letters") . . . The Letters

raise a question about whether Mr. Demczyk wishes to

continue to serve as the Chapter 12 Trustee. If a change

is requested, the Court will await a motion filed and

served on all parties in interest. See 11 U.S.C. § 324. Mr.

Demczyk is to continue to carry out his responsibilities in

this case, absent a Court Order to the contrary.

J.A. at 14.

On December 7, 2000, the UST filed his motion to

reconsider, and on January 23, 2001, he filed a memorandum

in support of the motion to reconsider. A hearing on the

motion to reconsider was held on February 16, 2001. At the

hearing, the court was shown Demczyk’s resignation letter of

October 31, 2000. The letter read, in part:

Please accept my resignation as the standing Chapter 12

trustee for the Northern District of Ohio, Eastern Division,

effective November 30, 2000. I have previously discussed

this matter with your staff regarding an orderly transition

of accounts, files, and other assets which might pertain to

this trusteeship. 
No. 02-3237 In re Brookover, et al. 5

Therefore, whatever I can do to assist this transition

and make it as efficient as possible, please do not

hesitate to contact me at your earliest convenience.

J.A. at 35. 

Following the hearing, and with leave of court, on March 2,

2001, the UST filed a supplemental memorandum in support

of the motion to reconsider. The bankruptcy court denied the

UST’s motion to reconsider in a published opinion. In re Dale

R. Brookover, et al., 259 B.R. 884 (Bankr. N.D. Ohio 2001).

The UST appealed the orders to the district court pursuant to

28 U.S.C. § 158(a). The district court considered the three

appeals, and issued an order affirming the bankruptcy court’s

decision for the reasons set forth therein. Robiner v. Demczyk

269 B.R. 167, 171 (N.D. Ohio 2001).

II. ANALYSIS

A. Standard of Review

This is an appeal in a bankruptcy case raising questions of

law only. “In a case which comes to us from the bankruptcy

court by way of an appeal from a decision of a district court,

we review directly the decision of the bankruptcy court. We

accord no deference to the district court's decision . . . [and]

review de novo the bankruptcy court's conclusions of law.” In

re Hurtado, 342 F.3d 528, 531 (6th Cir. 2003) (citing

Brady-Morris v. Schilling (In re Kenneth Allen Knight Trust),

303 F.3d 671, 676 (6th Cir.2002)).

B. Absent an Express Statutory Provision to the

Contrary

The direct task before this court is to determine where the

power to accept the voluntary resignation of a trustee in

6 In re Brookover, et al. No. 02-3237

1

There is a case that touches on some of the constituent parts running

through the instant case, see, e.g., Richman v. Straley, 48 F.3d 1139,

1143-44 (10th Cir. 1995), but no case squarely addresses the core

question before this court.

bankruptcy lies. This issue has not been extensively litigated.1

The pivotal query in this case, however, is directed at the

relationship between the common law and statutory authority

as it relates to the process of voluntary resignation and

acceptance of that resignation. On this issue, the law provides

adequate guidance. 

Generally, “where a common-law principle is wellestablished . . . the courts may take it as given that Congress

has legislated with an expectation that the principle will apply

except ‘when a statutory purpose to the contrary is evident.’”

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108

(1991) (citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783

(1952)). Specifically, the UST argues that, under the common

law, absent an express statutory provision to the contrary, a

public officer has the right to resign, and the authority to

accept the resignation resides with the person or body having

authority to appoint the successor. See Rockingham County v.

Luten Bridge Co., 35 F.2d 301, 306 (4th Cir. 1929). The

bankruptcy court, however, found that “the UST, a creature of

statute, cannot[, as he is now attempting,] simply arrogate to

himself the power to accept a trustee’s resignation, without

Congress so providing.” In re Dale R. Brookover, 259 B.R. at

890 (citing Louisiana Pub. Serv. Comm'n v. F.C.C., 476 U.S.

355, 374-76 (1986) (a federal agency may not confer power

upon itself or expand its power)). The foundation of the

bankruptcy court’s position is, therefore, that a Congressional

grant of authority must be the sole source of the UST’s power

to accept a trustee’s voluntary resignation. Such a proposition,

however, provides ample space for the expression of that

invested power to be explicit or implicit. Implicit or incidental

power can be found in the absence of a “specific provision to

the contrary.” Carlucci v. Doe, 488 U.S. 93, 99 (1988)
No. 02-3237 In re Brookover, et al. 7

2

Notice and hearing are required where involuntary “for cause”

removal pursuant to 11 U.S.C. § 324 is invoked, see, e.g., In the Matter

of Chapter 13, Pending and Future Cases, 19 B.R. 713, 714-17 (Bankr.

W.D. Wash.1982) (stating that notice and hearing is required and cause

for removal must be shown when a standing trustee for Chapter 13 case

is removed for cause (citing 11 U.S.C. § 324)), but there is no indication

anywhere that such measures are necessary for acceptance of a voluntary

resignation. 

(“[A]bsent a ‘specific provision to the contrary, the power of

removal from office is incident to the power of

appointment.’”) (citation omitted)). Thus, the threshold

question is whether there is a relevant statutory provision that

limits, expressly or impliedly, the alleged common law

authority of the UST to accept the voluntary resignation of a

trustee, where that UST has the express authority to replace the

trustee without judicial or other oversight. 

C. Application of 11 U.S.C. § 324

In the present case, the bankruptcy court rejected the

common law rule because it concluded that the Bankruptcy

Code specifies a role for the court in accepting or refusing the

voluntary resignation of a trustee. Specifically, the bankruptcy

court stated that “[r]esort to common law is not proper in the

face of a [Bankruptcy] Code section clearly setting forth the

statutory procedure to be used when either a trustee seeks, or

other officer of the court or the Court seeks, the trustee’s

removal from a pending case.” In re Dale R. Brookover, 259

B.R. at 889 (emphasis added). Importantly, the bankruptcy

court uses the word “removal;” removal is a separate and

distinct process from resignation.2

“[W]here Congress uses terms that have accumulated settled

meaning under . . . the common law, a court must infer, unless

the statute otherwise dictates, that Congress means to

incorporate the established meaning of these terms.” Field v.

Mans, 516 U.S. 59, 69 (1995); Nationwide Mut. Ins. Co. v.

Darden, 503 U.S. 318, 322 (1992). Under the common law,

8 In re Brookover, et al. No. 02-3237

“removal” means “the dismissal from office,” whereas

“resignation” means “renouncement or relinquishment of an

office.” BLACK’S LAW DICTIONARY 1295, 1310 (6th ed.1990).

Under the terms of this discussion, it is conceded that the

resignation at issue is “voluntary” and, therefore, distinct from

removal, to the extent that the latter, implicitly, if not

explicitly, contains an element of involuntariness. Consistent

with these understandings, Congress has consistently treated

resignation and removal as distinct events, both under the

Bankruptcy Code, see 11 U.S.C. §§ 703(a) and 1104(d), and

under Bankruptcy Rule 2012(b).

Scrutiny of the specific provision governing involuntary

removal, 11 U.S.C. § 324, reveals that it does not control the

administration of a trustee’s voluntary resignation. 11 U.S.C.

§ 324 states: 

(a) The Court, after notice and a hearing, may remove a

trustee, other than the United States trustee, or an

examiner, for cause. 

(b) Whenever the court removes a trustee or examiner

under subsection (a) in a case under this title, such trustee

or examiner shall thereby be removed in all other cases

under this title in which such trustee or examiner is then

serving unless the court orders otherwise.

11 U.S.C. § 324 (emphasis added). 11 U.S.C. § 324 governs

“for cause” removal, which implies involuntary termination

based on some fault or shortcoming of the person being

removed. The phrase “for cause” is not defined in the

Bankruptcy Code. According to Black’s Law Dictionary:

With respect to removal from office, “for cause” means

for reasons which law and public policy recognize as

sufficient warrant for removal and such cause is “legal

cause” and not merely a cause which the appointing

power in the exercise of discretion may deem sufficient .

. . The cause must be one in which the law and sound
No. 02-3237 In re Brookover, et al. 9

3

The bankruptcy court may be correct when it states: “By definition

‘for cause’ contemplates considerations of public policy and law, which

considerations would not, and could not, be addressed if a trustee were

simply permitted to resign without notice to interested parties and without

the opportunity for a hearing, which by necessity involves the Court.” In

re Dale Brookover, 259 B.R at 891. The considerations of public policy

and law, however, are directly connected to the “cause” for the removal,

and not the effect of the removal. The rationale underlying the necessity

for due process-like procedures in a removal “for cause” is, therefore,

inapplicable to a voluntary resignation where the “because” is not an

issue. At the hearing in this case, no suggestion was made by any

participant that Demczyk had done anything other than commendable

work. See J.A. at 35.

public policy will recognize as a cause for official [sic] no

longer occupying his office. 

BLACK’S LAW DICTIONARY 644 (6th ed.1990) (citations

omitted). 

It is possible that some fault or shortcoming of a trustee

could lie at the heart of her decision to voluntarily resign. That

fault or shortcoming may, therefore, be the moving force

behind the trustee’s private policy. Nonetheless, such a

coincidence would not vitiate the understanding that the cause

of such a voluntary resignation and, more importantly, the

force behind the decision to resign, lies in the trustee’s own

reasons.

3

 In this way, public policy is neither the cause nor the

because of underlying the resignation.

For these reasons, 11 U.S.C. § 324, the “for cause” removal

provision, does not limit the authority of the UST, whether that

authority is derived from a statutory scheme or the common

law, to the extent that that authority governs the administration

of a trustee’s voluntary resignation.

D. Application of 28 U.S.C. § 586(b)

Having determined that 11 U.S.C. § 324 does not negate, or

even act upon, the authority of a UST to accept the voluntary

10 In re Brookover, et al. No. 02-3237

4

Chapters 7 and 11 of the Code expressly refer to the UST’s role in

appointing a successor trustee who “dies,” or “resigns,” or “is removed,”

whereas Chapters 12 and 13 do not. It was necessary to specify the UST’s

role in appointing individual successor trustees under Chapters 7 and 11

because that role, unlike its Chapters 12 and 13 parallel, is contingent –

in Chapter 7, on whether the creditors have exercised their right to elect

a trustee, see 11 U.S.C. § 703, and in Chapter 11, on whether the court

ordered appointment of a trustee in the first instance. See 11 U.S.C.

§ 1104(d). The absence of an express provision, designed to deal with a

specific contingency in different Chapters, does not impact Chapter 12,

where that specific contingency is not at issue. “[It is] hornbook teaching

that ‘the provisions of chapters 7, 9, 11, and 13 do not apply in chapter 12

resignation of a trustee, our attention shifts to the examination

of 28 U.S.C. § 586(b) as a potential positive source of that

authority. Section 586(b) states, in part: “The [UST] . . . shall

supervise any such individual appointed as standing trustee in

the performance of the duties of the standing trustee.” 11

U.S.C. § 586(b). Some of the additional enumerated duties of

the UST include: monitoring plans filed under Chapter 12,

appointing a standing trustee under Chapter 12, and

monitoring such trustee. 28 U.S.C. § 586. The bankruptcy

court reasoned that, because acceptance of trustee resignations

is not one of the UST’s enumerated duties under 28 U.S.C. §

586, the UST is barred from such a function under the maxim

expressio unius est exclusio alterius, meaning that the

expression of one thing is the exclusion of the other. In re

Dale R. Brookover, 259 B.R. at 893-94. This reasoning is

flawed. 

First, as the UST rightly avers, the enumerated duty of the

UST to “supervise” is, arguably, broad enough to encompass

the administrative authority to accept a trustee’s voluntary

resignation, particularly when that authority is not expressly

withheld. See Carlucci, 488 U.S. at 99.

Second, the Bankruptcy Code requires the UST to appoint

a qualified successor trustee who is automatically substituted

in the case, with no abatement of any pending action or

proceeding. 11 U.S.C. § 325.4 Where there is no Bankruptcy
No. 02-3237 In re Brookover, et al. 11

cases unless specifically incorporated by a particular section of chapter

12.’” In re Dale R. Brookover, 259 B.R. at 890, n. 9 (quoting 8 COLLIER

ON BANKRUPTCY § 1200.02[2] (15th ed.)). At the same time, the

contention that the UST wields the sole authority to appoint and supervise

successor Chapter 12 trustees is undisputed.

Code provision or Bankruptcy Rule assigning the duty to

accept the prior trustee’s resignation to the court, it is entirely

consistent with congressional intent to find that the authority

to accept the resignation lies in common with the authority to

fill the vacancy left by that resignation.

Third, the acceptance of trustee resignations is entirely

consistent with the UST’s other statutorily assigned duties for

the appointment, supervision, and general administrative

management of trustees. Richman, 48 F.3d at 1143-44

(“Allowing the same nonjudicial body to both appoint and

terminate the appointment of standing trustees was consistent

with the legislative intent for the statutory scheme for the

appointment and removal of standing trustees; the cronyism

and appearance of impropriety that the legislature sought to

remedy was the old system which had standing trustees

appearing before the judges who appointed them. 11 U.S.C.A.

§ 324(a, b); 28 U.S.C.A. § 586(b)”). Moreover, imputing such

a role to the courts is contrary to the common law rule and

defeats the dominant purpose of Congress in creating the office

of the United States Trustee – that is, to take over the

administration of bankruptcy cases, including the management

of case trustees, from the courts. Likewise, the congressional

intent to “to strip bankruptcy courts of their administrative role

so that they could better perform their judicial tasks,”

Richman, 48 F.3d at 1144, militates against the bankruptcy

court’s intervention to the extent that the intervention sprang

from its presumed authority to regulate the trustee as an

“officer of the court.”

Judicial intervention in a trustee’s voluntary resignation,

based on the premise that a trustee is an “officer of the court,”

is unsound for several additional reasons. As an initial matter,

12 In re Brookover, et al. No. 02-3237

a bankruptcy trustee is not appointed by the court, is not a

court employee or official, and is specifically not required to

be a lawyer. See 28 U.S.C. § 586(d); 28 C.F.R. §§ 58.3(b) &

58.4(b). Rather, the trustee is a private individual appointed

by the Executive Branch to perform a public office under the

Bankruptcy Code.

Furthermore, a court’s inherent power to manage

proceedings is limited. In this case, Congress has deliberately

taken administrative responsibility for trustees away from

courts and placed it with the UST. 28 U.S.C. § 586. The

Bankruptcy Code already requires the UST to appoint a

qualified successor trustee who is automatically substituted in

the case, with no abatement of any pending action or

proceeding. 11 U.S.C. § 325. Finally, although Demczyk is an

attorney, he is not acting as an attorney in this case, and,

therefore, Ohio disciplinary rule DR 2-110 and Ohio Local

Civil Rule 83.9, which were cited by the bankruptcy court and

require court permission for an attorney to withdraw from

representation of a client in a pending proceeding, are not

applicable.

Accordingly, if any provision, explicitly or implicitly,

governs the acceptance of a voluntary resignation, it is 28

U.S.C. § 586(b). 

E. Under the Common Law, the Authority to Accept the

Resignation Resides with the Person or Body Having

Authority to Appoint a Successor

The Bankruptcy Code and Bankruptcy Rules explicitly

mandate how a trustee may be removed but not how a trustee

may voluntarily resign. The absence of an express mandate in

the Bankruptcy Code and Bankruptcy Rules on the issue of

voluntary resignation may indicate that, as discussed above,

the power to accept the voluntary resignation of a trustee is

contained in the UST’s supervisory authority pursuant to

28 U.S.C. § 586(b). Alternatively, the power to appoint a

successor without an abatement in the proceedings, or any
No. 02-3237 In re Brookover, et al. 13

5

Even where courts are vested with the power to remove a trustee,

that power has been held not to be exclusive. See Richman, 48 F.3d at

1143 (explaining the Bankruptcy Code section providing that court may

remove trustee for cause and that the removal for cause . . . did not

preclude the United States Trustee, as the party with the power of

appointment, from removing standing Chapter 12 and Chapter 13 trustee.

11 U.S.C.A. § 324(a, b); 28 U.S.C.A. § 586(b)). 

judicial oversight, may subsume the power to accept the

voluntary resignation of the predecessor. 11 U.S.C. § 325;

Bankr. Rule 2012(b) (“[w]hen a trustee dies, resigns, is

removed, or otherwise ceases to hold office during the

pendency of a case under the [Bankruptcy] Code . . . the

successor is automatically substituted.”). Under either

proposition, the trustee’s choice to resign is, to the eyes of the

court, a black box. 

If the authority to terminate, which is by definition an

involuntary process, is implicit in the power of appointment,

then there is no logical or statutory barrier to a finding that the

authority to accept a resignation, which is by implication

voluntary or at least less involuntary than removal, is likewise

implicit in the power to appoint the successor trustee.

Richman, 48 F.3d at 1143-44 (10th Cir. 1995) (“[T]ermination

authority was implicit in the statutory power of appointment.”

28 U.S.C. § 586(b) (citations omitted)). Moreover, if the

statutory authority to remove can be contained within the

power to appoint, it would be unsound to say that, where the

UST holds the authority to appoint the successor, and the

power to appoint the successor is not judicially supervised, the

UST does not have the power to accept the voluntary

resignation of the predecessor. Carlucci v. Doe, 488 U.S. at 99

(statutory power to appoint implicitly encompasses power to

remove, unless the statute specifically denies such power).5

The common law, recognizing this verity, has long held that,

absent an express statutory provision to the contrary, a public

officer has the right to resign and the authority to accept the

resignation resides with the person or body having authority to

14 In re Brookover, et al. No. 02-3237

appoint the successor. See Rockingham County, 35 F.2d at

306.

Whether viewed directly through 28 U.S.C. § 586(b) or the

prism of the common law, the light of the law falls squarely

upon a single conclusion: the authority to accept the voluntary

resignation of a bankruptcy trustee is vested entirely within the

purview of the UST’s congressionally conferred authority.

Where, as is the case here, a common law principle is wellestablished, the courts may take it as given that Congress has

legislated with an expectation that the principle will apply

except “when a statutory purpose to the contrary is evident.”

Solimino, 501 U.S. at 108. No statutory purpose to the

contrary is present in this case. Accordingly, the UST has the

authority to accept the voluntary resignation of a bankruptcy

trustee in a pending case, and the law does not require the

decision to be submitted to the bankruptcy court for approval.

Thus, the bankruptcy court’s ruling requiring a motion,

evidentiary hearing, and a judicial determination to decide

whether a bankruptcy trustee who wishes to resign voluntarily

is justified in so doing is not supported by law. 

III. CONCLUSION

For the reasons stated above, the judgment of the district

court affirming the bankruptcy court’s ruling is REVERSED,

and the case is REMANDED for further proceedings

consistent with this opinion.