Revised September 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 ____________________

No. 97-10378

____________________

In The Matter Of: CHARLES ENGLAND,

Debtor.

--------------------

J GREGG PRITCHARD,

Appellee,

v.

US TRUSTEE,

Appellant,

v.

PALMER & PALMER, PC,

Appellant.

---------------------------------------------

In The Matter Of: WESLEY R ENGLAND,

Debtor.

--------------------

J GREGG PRITCHARD, Trustee,

Appellee,

v.

US TRUSTEE,

Appellant,
 

* District Judge of the Eastern District of Texas, sitting

by designation.

2

v.

PALMER & PALMER, PC,

Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________

August 28, 1998

Before KING and DAVIS, Circuit Judges, and HEARTFIELD,* District

Judge.

KING, Circuit Judge:

Appellants, the United States Trustee and Palmer & Palmer,

P.C. appeal the district court’s judgment reversing the

bankruptcy court’s judgment which limited bankruptcy trustee

J. Gregg Pritchard’s compensation for administering the debtors

estates. We reverse the district court’s judgment.

I. BACKGROUND

Trustee-appellee J. Gregg Pritchard (the Trustee) served as

the bankruptcy trustee in the Chapter 7 liquidations of the

jointly administered estates of two brothers, debtors Charles

England and Wesley R. England. Real estate provided the bulk of

the assets for both estates, and some of the properties were

owned jointly by the debtors. The Trustee successfully sold some

of the properties, but the other properties proved more difficult

to sell. To avoid delay in closing the estates and with only six

unsecured creditors left to be paid, the creditors and the
 

1 The Trustee suggests that Palmer is not a proper

appellant. We need not reach this question because the United

States Trustee is undoubtedly a proper party and is requesting

the identical relief, and therefore we may entertain this appeal

even without Palmer.

3

Trustee entered into an agreement to transfer the unsold real

estate and other property to two of the creditors in full

satisfaction of their claims and to pay the other four creditors

in full. This settlement, including the transfer of property,

was approved by the bankruptcy court without any objection from a

party-in-interest.

The Trustee then sought $89,359.99 in compensation from the

estates. The bankruptcy court reduced the Trustee’s compensation

to $38,009.30 based upon 11 U.S.C. § 326(a), which caps a Chapter

7 trustee’s compensation based upon a percentage of the moneys

disbursed. The Trustee appealed the bankruptcy court’s

compensation decision to the district court, which reversed the

decision and ruled that the Trustee’s maximum compensation would

be based upon the moneys and property disbursed. The United

States Trustee (the U.S. Trustee) and Palmer & Palmer, P.C.

(Palmer), the debtors’ counsel, appeal.1

II. STANDARD OF REVIEW

This case presents only a question of statutory

interpretation, which is a question of law reviewed de novo. See

Bruner v. United States (In re Bruner), 55 F.3d 195, 197 (5th

Cir. 1995).
 

2 The relevant portions of §§ 330 and 326 were both amended

in 1994. See Bankruptcy Reform Act of 1994, Pub. L. No. 103-394,

§§ 107, 224, 108 Stat. 4106, 4111, 4130-31. Those amendments do

not apply to this bankruptcy proceeding because it was filed

before their effective date. See id. § 702, 108 Stat. 4150. 

Therefore, all references, unless otherwise noted, are to the

previous versions of §§ 326 and 330 applicable in this case.

 

3 Section 330 provides:

 (a) After notice to any parties in interest and to

the United States trustee and a hearing, and subject to

sections 326, 328, and 329 of this title, the court may

award to a trustee . . . --

 (1) reasonable compensation for actual,

necessary services rendered by such trustee . . .

based on the nature, the extent, and the value of

such services, the time spent on such services,

and the cost of comparable services other than in

a case under this title; and

 (2) reimbursement for actual, necessary

expenses.

11 U.S.C. § 330.

4

III. DISCUSSION

Section 330 of the Bankruptcy Code provides authority for

the bankruptcy court to award the bankruptcy trustee “reasonable

compensation for actual, necessary services rendered by such

trustee.” See 11 U.S.C. § 330(a)(1).2 Under § 330, the

bankruptcy court may award less compensation than requested, and

the section sets out relevant factors to consider in determining

reasonable compensation. See id.;

3 3 COLLIER ON BANKRUPTCY

§ 330.02[1][c][i] (Lawrence P. King ed., 15th ed. rev. 1998). 

However, § 326 of the Bankruptcy Code limits the bankruptcy

court’s power to award compensation to the trustee by setting a

maximum limit on the trustee’s compensation. Section 326(a)
5

provides that 

[i]n a case under chapter 7 or 11, the court may

allow reasonable compensation under section 330 of this

title of the trustee for the trustee’s services,

payable after the trustee renders such services, not to

exceed [decreasing percentages of increasing dollar

amounts], upon all moneys disbursed or turned over in

the case by the trustee to parties in interest,

excluding the debtor, but including holders of secured

claims.

Id. § 326(a) (emphasis added). The proper outcome of this appeal

turns upon whether “moneys disbursed” as used in § 326(a)

includes the disbursement of unliquidated property from the

estate. 

Before interpreting the statute, we must first address the

Trustee’s argument that the law of the case controls the outcome

of this case. Under the law-of-the-case doctrine, a court

follows its prior final decisions in the case as the law of that

case, except for a few narrow exceptions. See Alberti v.

Klevenhagen, 46 F.3d 1347, 1351 n.1 (5th Cir. 1995). The

doctrine encompasses those decisions “‘decided by necessary

implication as well as those decided explicitly.’” Id. (citing

Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1098 (5th Cir.

1983)). The Trustee argues that the bankruptcy court determined

that the definition of “money” includes property when it approved

the transfer of the property to the unsecured creditors in full

satisfaction of their claims. He bases his argument upon the

trustee’s duty to reduce the property of the estate to money

under 11 U.S.C. § 704(1), contending that, in order to approve
6

the transfer, the bankruptcy court necessarily had to decide that

money included property or else the court could not have approved

the transfer. However, the bankruptcy court made no such

determination, either implicitly or explicitly; the court was

simply presented with a method, urged by the Trustee and the

creditors, to satisfy all of the remaining creditors’ claims in

full while avoiding the delay of waiting for the sale of the

remaining properties. No one objected to the transfer of

property to satisfy the remaining claims against the estates, and

the bankruptcy court approved the transfer without making any

decision as to the meaning of “money” under the Bankruptcy Code.

We return, then, to our statutory inquiry. To determine the

meaning of a statute, a court must begin with the plain meaning

of its language. See United States v. Ron Pair Enters., 489 U.S.

235, 241 (1989). “Courts properly assume, absent sufficient

indication to the contrary, that Congress intends the words in

its enactments to carry ‘their ordinary, contemporary, common

meaning.’” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380, 388 (1993) (quoting Perrin v. United

States, 444 U.S. 37, 42 (1979)). Because the Bankruptcy Code does

not define “moneys” (or “money”), we must rely upon the word’s

common everyday meaning, which does not include property. See

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1458 (Philip Babcock Gove

ed., 1963) (defining “money” as “something generally accepted as

a medium of exchange, a measure of value, or a means of
7

payment”); BLACK’S LAW DICTIONARY 1005 (6th ed. 1990) (defining

“money” as “coins and paper currency used as circulating medium

of exchange, and does not embrace notes, bonds, evidences of

debt, or other personal or real estate”). The plain language of

§ 326(a) indicates that the statute caps a trustee’s compensation

based upon only the moneys disbursed, without any allowance for

the property disbursed. See In re Barnett, 133 B.R. 487, 489-90

(Bankr. N.D. Iowa 1991) (relying upon the plain language of the

statute to hold that property disbursements could not increase

the maximum compensation); In re New England Fish Co., 34 B.R.

899, 901-02 (Bankr. W.D. Wash. 1983) (same); see also In re

Brigantine Beach Hotel Corp., 197 F.2d 296, 299 (3d Cir. 1952)

(interpreting the same language in the Bankruptcy Act of 1898 and

finding that “moneys” is not the equivalent of property); In re

North Am. Oil & Gas, Inc., 130 B.R. 473, 480-81 (Bankr. W.D. Tex.

1990) (finding unliquidated assets turned over did not increase

the trustee’s maximum compensation). But see In re Toole, 294 F.

975, 977 (S.D.N.Y. 1920) (interpreting the same language in the

Bankruptcy Act of 1898 and finding “moneys disbursed or turned

over” broad enough to encompass securities disbursed).

The Trustee argues that the plain meaning of money should

not be used in interpreting § 326(a) because to do so conflicts

with fundamental policies of the Bankruptcy Code, including

prompt administration of the bankruptcy estate and maximization
 

4 The Trustee also argues that the term “money,” as used in

the Bankruptcy Code, does not have a plain meaning that excludes

property because, in approving the transfer of the property to

satisfy creditors’ claims, the bankruptcy court interpreted

“money” to include property. This argument fails for the same

reasons as the Trustee’s law-of-the-case argument discussed above

in the text: the bankruptcy court’s approval of the transfer of

the property in no sense carried with it an explicit or implicit

determination of what constituted “money.”

 

5 In this case, we are concerned only with the

interpretation of 11 U.S.C. § 326(a) and do not express any

opinion as to the propriety of the Trustee’s transfer of the

property to the unsecured creditors as a method of settling the

debtors’ estates under the Bankruptcy Code.

8

of the payments to creditors.4 See 11 U.S.C. § 704(1) (including

among the duties of the trustee the duty to “collect and reduce

to money the property of the estate for which such trustee

serves, and close such estate as expeditiously as is compatible

with the best interests of parties in interest”). According to

the Trustee, these policies support his decision to transfer the

property to the unsecured creditors, and the conflicts with these

policies that a plain language interpretation of § 326(a) creates

are “‘demonstrably at odds with the intentions of [the statute’s]

drafters,’” requiring courts to give controlling effect to their

intentions over the statute’s plain meaning.5 See Ron Pair

Enters., 489 U.S. at 242 (quoting Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564, 571 (1982)). 

Restated, the Trustee’s argument is that, by excluding

property distributions from the calculation of his maximum

compensation, the plain meaning of § 326(a) creates an incentive
 

6 The Senate and House Reports read identically in relation

to § 326 and its intended purpose as an upper limit on trustee

compensation:

It must be emphasized that this section does not

authorize compensation of trustees. This section

simply fixes the maximum compensation of a trustee. 

Proposed 11 U.S.C. 330 authorizes and fixes the

standard of compensation. Under section 48c of current

law, the maximum limits have tended to become minimums

in many cases. This section is not intended to be so

interpreted. The limits in this section, together with

9

for a trustee to liquidate assets even though that action may not

be in the best interest of the estate. However, § 330, not

§ 326(a), provides authorization for compensating the trustee and

sets the standards for that compensation, and it allows a

bankruptcy court to award a lesser amount of compensation when

the trustee has manipulated the handling of an estate to increase

his maximum compensation to the detriment of the estate. See 11

U.S.C. § 330(a)(1)-(2) (authorizing reasonable compensation only

for “actual necessary services” and “actual necessary,

expenses”); In re Prairie Cent. Ry., 87 B.R. 952, 957 (Bankr.

N.D. Ill. 1988); see also Southwestern Media, Inc. v. Rau, 708

F.2d 419, 424 (9th Cir. 1983) (interpreting 11 U.S.C. § 326(a)’s

substantially similar predecessor in the Bankruptcy Act of 1898). 

Section 326(a)’s intended role within the Bankruptcy Code is

simply to set a maximum limit on the trustee’s compensation. See

S. REP. NO. 95-989, at 37 (1978), reprinted in 1978 U.S.C.C.A.N.

5787, 5823; H.R. REP. NO. 95-595, at 327 (1977), reprinted in 1978

U.S.C.C.A.N. 5963, 6283;6 see also 11 U.S.C. § 326 (entitled
the limitations found in section 330, are to be applied

as outer limits, and not as grants or entitlements to

the maximum fees specified.

S. REP. NO. 95-989, at 37 (1978), reprinted in 1978 U.S.C.C.A.N.

5787, 5823; H.R. REP. NO. 95-595, at 327 (1977), reprinted in 1978

U.S.C.C.A.N. 5963, 6283. 

10

“Limitation on compensation of trustee”); Southwestern Media, 708

F.2d at 424; Prairie Cent. Ry., 87 B.R. at 957. Therefore, a

trustee who manipulates a bankruptcy estate to increase his

maximum compensation risks being denied compensation regardless

of what the maximum compensation may be under § 326(a) because

the compensation is unreasonable in light of the trustee’s

manipulations. See Southwestern Media, 708 F.2d at 425; Prairie

Cent. Ry., 87 B.R. at 957.

The policy concerns raised by the Trustee do not demonstrate

that using the plain meaning of “moneys disbursed” in

interpreting § 326(a), especially in light of § 330’s role in

setting compensation, is at odds with Congress’s intent. See

Barnett, 133 B.R. at 489-90. The section is consistent with the

duty of a Chapter 7 trustee to collect and reduce the property of

the bankrupt’s estate to money. See 11 U.S.C. § 704(1). 

Additionally, § 326(a) does not in itself prohibit the court, in

setting the trustee’s compensation under § 330, from taking into

account the services that the trustee rendered in arranging for

the property distribution in settlement of claims, but merely
11

sets an upper limit on the trustee’s compensation from the

estate. See 11 U.S.C. §§ 326(a), 330. Congress’s decision to

set a maximum limit on trustee compensation based only upon

moneys disbursed may arguably lead to a trustee receiving

inadequate compensation in a particular case, but that is a

problem for Congress to remedy. See Barnett, 133 B.R. at 490.

We recognize that, despite the plain meaning of § 326(a),

some bankruptcy courts have interpreted the section to include

disbursements other than money within the calculation of a

trustee’s maximum compensation. See In re Greenley Energy

Holdings of Pa., Inc., 102 B.R. 400 (E.D. Pa. 1989) (including

guaranteed contracts in the calculation of maximum compensation

where the trustee actually sought out and entered the contracts

for the estate); In re Toole, 294 F. 975 (S.D.N.Y. 1920)

(interpreting the same language in the Bankruptcy Act of 1898 to

include securities disbursed in a difficult bankruptcy); In re

Stanley, 120 B.R. 409 (Bankr. E.D. Tex. 1990) (including liens on

property that remained in force on the property after sale in the

calculation of maximum compensation); see also North Am. Oil &

Gas, 130 B.R. at 480 n.15 (relying upon Greenley Energy for the

idea that the rare case may present a situation where property

distributions which can be readily valued are includable in

determining the trustee’s maximum compensation). We simply

disagree that the plain language of § 326(a) permits a different

result from that reached by the bankruptcy court in this case.
12

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s

judgment and REMAND the case for further proceedings consistent

with this opinion.