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Click here for the full text of this decision The attorney general’s “expense first” policy does not change the maximum percentage allowable; it simply sets a calculation method. Thus, the agency’s actions do not conflict with the language of the statute. FACTS:In this consolidated civil action, Carl A. Dengel filed suit against the United States Trustee (UST) and Bank One for withholding his standing trustee compensation and expenses. In particular, this dispute stems from the UST’s interpretation of 28 U.S.C. �586(e). The district court rendered judgment in favor of the UST and dismissed Dengel’s law suit against Bank One. HOLDING:Affirmed. Dengel argues that the Executive Office of the U.S. Trustee Handbook is not entitled to deference for interpreting �586(e) because �586 does not confer authority upon the EOUST to create laws or regulations relating to compensation of standing trustees. Dengel refers to the concept of expressio unius est exclusio alterius as support for his argument. The district court determined that �586(e)(1) delegates authority to fix a maximum annual compensation and percentage fee to the attorney general. To support its conclusion, the district court reviewed the entire statute and determined that the attorney general has a variety of authority under �586(c) and (d). The UST asserts that the attorney general has broad statutory authority to set a fee within the parameters stated in the statute. The UST argues that Dengel’s expressio unius est exclusio alterius argument is misguided and that the statutory maximum of standing trustee compensation does not place a limit on the attorney general’s, through the EOUST’s, authority to determine the manner and order in which compensation and expenses are to be paid. The court is persuaded by the UST’s argument. Based on the plain language of the statute, Congress has delegated broad authority to the agency to regulate standing trustee compensation and the percentage fee. Section 586(e)(1) specifically prescribes that “The Attorney General . . . shall fix . . . a maximum annual compensation . . . [and] . . . a percentage fee.” 28 U.S.C. � 586(e)(1) (emphasis added). In addition to the language of the statute, Christensen v. Harris County, 120 S.Ct. 1655 (2000) supports the attorney general’s authority to institute such a policy. In Christensen, the Supreme Court determined that the Fair Labor Standards Act (FLSA) limits the state “from compelling employees to utilize accrued compensatory time.” In that case, Harris County, Texas, gave employees statutorily required accrued compensatory time as payment for overtime above the statutory maximum of 40 hours per week. The county found that employees were accruing more compensatory time than it was going to be able to afford to pay out. Upon request by the county, the Department of Labor issued an opinion letter authorizing it to require non-exempt employees to use or take compensatory time. In response, the county instituted a policy setting a maximum number of compensatory hours that may be accumulated and if the employee does not take steps to reduce accumulated compensatory time, the county may order the employee to use his compensatory time at specific times. Although the employees conceded that “nothing in the FLSA expressly prohibits” Harris County’s policy, they complained that according to the canon of expressio unius est exclusio alterius, the “express grant of control to employees to use the compensatory time, subject to the limitation regarding undue disruptions of workplace operations, implies that all other methods of spending compensatory time are precluded.” The Supreme Court found this argument unpersuasive explaining that the fact that the statute provides a “minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it,” does not mean that the statute does not set forth “the exclusive method by which compensatory time can be used, but [sets] up a safeguard to ensure that an employee will receive timely compensation for working overtime.” Although the Supreme Court acknowledged that “[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode,” “the thing to be done” in the disputed statute is the minimum guarantee. In other words, the Supreme Court interpreted the statute in Christensen to merely provide the parameters in which the County can administer compensatory time. Similarly, Dengel expresses the misguided theory that under expressio unius est exclusio alterius, the statute limited the attorney general’s authority to fixing a percentage fee and a maximum annual compensation to the exclusion of any other activity. The court concludes, however, that “the thing to be done” in the present statute is the 5 percent maximum allocation of bankruptcy payments to compensation. The statute guarantees a compensation ceiling of 5 percent but does not prohibit the attorney general from instituting a method for calculating compensation and expenses, nor does the statute guarantee that trustees will receive the full 5 percent for compensation. Rather, the attorney general is prohibited from setting an annual maximum compensation exceeding 5 percent of bankruptcy payments. The attorney general’s “expense first” policy does not change the maximum percentage allowable, it simply sets a calculation method. Thus, the agency’s actions do not conflict with the language of the statute. OPINION:Stewart, J.; Jolly, Higginbotham and Stewart, JJ.

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