Timothy A Domenico

1 The Court has subject matter and personal jurisdiction
pursuant to 28 U.S.C. §§1334 and 157(b); this is a core
proceeding pursuant to 28 U.S.C. §157(b)(2)(I) and (J); and these
are findings of fact and conclusions of law as may be required by
Rule 7052 F.R.B.P.
2 For some reason, the Order to Show Cause listed the prior
case as a chapter 7 case rather than a chapter 13 case; the
mistake makes no difference.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
TIMOTHY DOMENICO,
Debtor. 	No. 7-06-12430 SL
MEMORANDUM OPINION AND ORDER TO DISMISS CASE
IF DEBTOR DOES NOT PAY FILING FEE
FROM PREVIOUS CASE
This matter comes before the Court on the Order to Show
Cause Why Case Should Not Be Dismissed for Failure to Pay
Previous Filing Fee (doc 9). 	For the reasons set forth below,
the Court requires the Debtor to pay the filing fee from a
previous case on pain of dismissal of this case. 1
Background
Debtor filed a chapter 13 petition in 2005 (No. 7-05-17053
SL, United States Bankruptcy Court, District of New Mexico). 2
The 2005 case was dismissed for failure to pay the filing fee on
January 3, 2006 (doc 28). 	The Debtor still owes $144. 	On
December 27, 2006 Debtor then filed, and paid the full filing fee
for, the instant case. 	On January 4, 2007, the Court (through
the Clerk’s office) issued its Order to Show Cause (doc 9),
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3 Pub. L. No. 109-08, 119 Stat. 23 (“BAPCPA”).
Page 2 of 	12
conducted a preliminary hearing on January 22, 2007, and then
took the matter under advisement. 	The Order to Show Cause was
noticed to the Debtor, Debtor’s attorney, case trustee and United
States Trustee. 	Only the Debtor’s attorney appeared at the
hearing.
Analysis
11 U.S.C. §707(a)(2) provides that the Court may dismiss a
chapter 7 case for “nonpayment of any fees or charges required
under chapter 123 of title 28....” 	Chapter 123 of title 28
includes §1930, which sets out the filing fees required to be
paid for filing petitions under various chapters of the Code.
The identical language appears in the dismissal or conversion
provisions of chapters 12 and 13 (§§1208(c)(2) and 1307(c)(2)),
and the almost identical language appears in the dismissal or
conversion provisions of chapter 11 (§1112(b)(4)(K) – “nonpayment
of any fees....” changed to “failure to pay any fees....” by the
Bankruptcy Abuse Prevention and Consumer Protection Act of
2005 3). 	The question therefore is, did Congress mean to require,
on pain of dismissal or conversion, the payment of any fee
arising in the currently filed case, or any chapter 123 fee
remaining unpaid from any federal court activity?
The task of resolving the dispute over the meaning of
[the language in question] begins where all such
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4 “ALL – used to indicate a maximum or whole <needs ~ help
he can get>.” 	Webster’s Ninth New Collegiate Dictionary 93
(1991).
Page 3 of 	12
inquiries must begin: with the language of the statute
itself.
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241
(1989). (Citations and internal punctuation omitted.) 	But see
Marrama v. Citizens Bank of Massachusetts (No. 05-996) 549 U.S.
___, 2007 WL 517340 (2007)(majority rejects dissent’s “plain
language” textual analysis interpreting §706(a) and (d)).
The use of the term “any” in the statute strongly suggests
it is not limited in its application; in this context, it can
only be a synonym for “all”. 4 	“[W]e assume that the legislative
purpose is expressed by the ordinary meaning of the words used.”
American Tobacco Company v. Patterson, 456 U.S. 63, 68 (1982)
(interpreting provision of Civil Rights Act of 1964; citation and
internal punctuation omitted.); see also Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership, 507
U.S. 380, 388 (1993) (“Courts properly assume, absent sufficient
indication to the contrary, that Congress intends the words in
its enactments to carry their ordinary, contemporary, common
meaning.”). 	(Internal punctuation and citation omitted.)
Certainly nothing in the statute explicitly limits the term
“any fee” to the current case. 	Had Congress meant to limit the
language to fees required for the current case, it could easily
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5 Compare Rule 4004(c)(1)(G) F.R.B.P. (Grant or Denial of
Discharge), which provides in relevant part as follows:
In a chapter 7 case...the court shall forthwith grant
the discharge unless...the debtor has not paid in full
the filing fee prescribed by 28 U.S.C. §1930(a) and any
other fee prescribed by the Judicial Conference of the
United States under 28 U.S.C. §1930(b) that is payable
to the clerk upon commencement of a case under the
Code, unless the court has waived the fees under 28
U.S.C. § 1930(f)....
The rule is clearly limited to the filing fees for a currently
filed case. 	It speaks of “the” filing fee rather than “any”
filing fee. 	It addresses only the filing fee and “any other
fee...payable to the clerk upon commencement of a case under the
Code” (rather than non-filing fees). 	And it allows for the
waiver of the fees under §1930(f), which itself speaks of filing
and related fees.
Page 4 of 	12
have used qualifying language such as “nonpayment of any fees or
charges arising in the case required under chapter 123....” 5
Since it did not, the argument that the term “any fee” is limited
only to the current case must therefore rely on implication.
Such an argument by implication is certainly not
implausible; “[s]tatutory construction...is a holistic endeavor.”
United Savings Assoc. of Texas v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365, 371 (1988). 	Indeed, the two
cases which the Court has found on this issue rely in part on the
language surrounding the phrase at issue to arrive at a
conclusion opposite to that reached by this Court. 	In re
Machdanz, Not Reported in B.R., 1994 WL 740457 (Bankr. D. Idaho
1994), and In re Howard, 333 B.R. 826 (Bankr. W.D. Wis. 2005),
both reasoned that because the circumstances described in the
same sections to justify dismissal or conversion all referred to
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Page 5 of 	12
events (or, perhaps more accurately, non-events) occurring in the
currently filed case, it would be sensible to similarly limit the
application of the “any fee” terminology. 	However, part of the
problem with this argument is that it would not make sense to
dismiss the current case for things that the debtor did nor did
not do in a previous case such as grossly mismanaging the
previous case, unreasonably delaying it, failing to timely file
and confirm a plan, defaulting on a confirmed plan in the
previous case, etc. 	All those issues would have been already
dealt with in the previous case. 	On the other hand, the
nonpayment of fees in a case is a circumstance that could carry
into future cases, as it has in this case.
The other argument relied on by these courts stems from the
ramifications of not limiting “any fee” to the current case.
Chapter 123 provides not only for fees required for a
case filed under Title 11, but also fees for cases
filed in virtually every other federal court including,
the Supreme Court, the Courts of Appeals, Admiralty and
Maritime Courts, and the Court of Claims. 	28 U.S.C.
§§1911, 1913, 1914, 1925. 	Chapter 123 also provides
for the assessment of civil fines and forfeitures. 	28
U.S.C. §1918.
In re Machdanz, at *1. 	The Howard court described this as a
“strange” result. 	333 B.R. at 828. 	And there is justification
for that adjective. 	For example, an additional sum even as small
as $144 could prevent a debtor from filing and pursuing another
case, a fact effectively recognized by the provisions of BAPCPA
which permit the Court to waive the filing fee for the most
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6 28 U.S.C. §1930(f)(1) provides in part as follows:
(1) Under the procedures prescribed by the Judicial
Conference of the United States, the district court or
the bankruptcy court may waive the filing fee in a case
under chapter 7 of title 11 for an individual if the
court determines that such individual...is unable to
pay that fee in installments. 	For purposes of this
paragraph, the term “filing fee” means the filing fee
required by subsection (a), or any other fee prescribed
by the Judicial Conference under subsections (b)( and
(c) that is payable to the clerk upon the commencement
of a case under chapter 7.
(2) The district court or the bankruptcy court may
waive for such debtors other fees prescribed under
subsections (b) and (c).
As of the date of this decision, the Judicial Conference has not
prescribed any procedures for the waiver of fees owed from prior
cases. 	Prescribing such procedures would presumably do away with
the issue of interpreting the statute, together with (depending
on the procedure) the dire consequences that will be visited on
some debtors.
7 In fact, an unpaid fine or forfeiture could be
substantial.
8 This Court has presided over cases in which Schedule I
discloses literally no income and Schedules A and B disclose
virtually no assets with which to pay more than a single digit
fee.
Page 6 of 	12
destitute of debtors. 	28 U.S.C. §1930(f). 6 	So, although the
amounts at issue will usually be relatively small 7, they will
still be of no small moment to some debtors; that is, there will
be some debtors who, for lack of a few more dollars in their
pockets, will be unable to avoid dismissal of their chapter 7
cases. 8 	Nevertheless, “as long as the statutory scheme is
coherent and consistent, there generally is no need for a court
to inquire beyond the plain language of the statute.” 	United
States v. Ron Pair Enterprises, Inc., 489 U.S. at 240-41.
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9 The Court’s decision in this case is driven only by its
application of the rules of statutory interpretation, and not at
all by the current difficulties occasioned by the severe drop in
bankruptcy filing fees which in years have provided a significant
source of financial support for the federal judiciary as a whole.
For example, cumulative bankruptcy court collections for FY 2005
were $236,537,316 (with September 2005 figures slightly higher
than would be historically indicated), and the Salaries and
Expenses appropriation for the same period was $4,125,000,000.
(Figures provided by the staff of the Administrative Office of
the United States Courts.)
Page 7 of 	12
That Congress might condition a debtor’s continuing in
bankruptcy on paying all fees, fines and forfeitures owed to the
United States is not especially surprising. 	For example,
Congress was at pains to ensure that a prisoner cannot use a
bankruptcy filing to discharge
a fee imposed on a prisoner by any court for the filing
of a case, motion, complaint, or appeal, or for other
costs and expenses assessed with respect to such
filing, regardless of an assertion of poverty by the
debtor...or the debtor’s status as a prisoner....
11 U.S.C. §523(a)(17) (as clarified by BAPCPA). 	And in a
parallel fashion, courts are careful to interpret statutes in a
way that preserves the public fisc. 9 	See Ardestani v.
Immigration and Naturalization Service, 502 U.S. 129, 147 (1991)
(Blackmun, J., dissenting) (canon of statutory interpretation
that waivers of sovereign immunity are strictly construed has as
one of its purposes to protect the public fisc).
The legislative history of §523(a)(17) does suggest an
argument contrary to this Court’s conclusion. 	Prior to BAPCPA,
several decisions had interpreted the earlier version of
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10 Section 523(a)(17) was added to the Bankruptcy Code by
the Prison Litigation Reform Act of 1995 (Pub. L. No. 104-134,
110 Stat. 1321) §804(b)(1996)) and provided in relevant part as
follows:
(17) for a fee imposed by a court for the filing of a
case, motion, complaint, or appeal, or for other costs
and expenses assessed with respect to such filing,
regardless of an assertion of poverty by the
debtor...or the debtor’s status as a prisoner....
Page 8 of 	12
§523(a)(17) (amended version quoted above) as applying only to
prisoners even though the statute as then written was not
explicitly limited to prisoners. 10 	E.g., Hough v. Fry (In re
Hough), 239 B.R. 412 (9 th Cir. B.A.P. 1999) (relying on various
statutory rules of interpretation and on where the amending
language was located in the original statute). 	By adding the
words “on a prisoner”, Congress used BAPCPA to make clear its
original intent that §523(a)(17) was addressed only to prisoners.
Applying that approach to this problem, the argument could
be made that when Congress passed BAPCPA, it had the opportunity
to correct what it might have considered to be incorrect
interpretations of the fee statutes, and because it did not do
so, it was therefore satisfied with the narrow interpretation of
the statute. 	Specifically, Machdanz had been decided in 1994,
and it had interpreted §1307(c)(2) (the identical provision in
chapter 13) as applying only to a current case. 	Thus one could
argue that by not amending the specific wording at issue in
§§707(a)(2), 1112(b)(4)(K), 1208(c)(2) and 1307(c)(2)), Congress
essentially declared itself satisfied with the status quo. 	See
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11 Reprinted in A. Resnick and H. Sommer, Collier on
Bankruptcy, App. Pt. 44-1 (Vol. G) (15 th Ed. Rev. 2006).
Page 9 of 	12
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.
353, 382 n.66 (1982), citing Lorillard v. Pons, 434 U.S. 575,
580-581 (1978):
Congress is presumed to be aware of an administrative
or judicial interpretation of a statute and to adopt
that interpretation when it re-enacts a statute without
change. 	So too, where, as here, Congress adopts a new
law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least
insofar as it affects the new statute.
(Citations omitted.)
The grounds for that argument do not exist in this case.
First, Machdanz, although available on Westlaw, was not published
in major “hard copy” reporters such as West’s Bankruptcy Reporter
or Matthew Bender’s Bankruptcy Cases. 	Second, Howard, which was
published in hard copy, is dated October 31, 2005, and would have
appeared in print sometime after that, perhaps a year or so after
Congress passed BAPCPA in February 2005. 	Third, there was
nothing in the National Bankruptcy Review Commission Final
Report 11 that addressed this issue. 	Thus, there is no basis for
assuming that Congress was even aware of this alleged statutory
ambiguity.
In any event, canons of construction are no more than
rules of thumb that help courts determine the meaning
of legislation, and in interpreting a statute a court
should always turn first to one, cardinal canon before
all other. 	We have stated time and again that courts
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12 Available at http://www.flsb.uscourts.gov/web_folder/
Administrative_Office_Bankruptcy_Fee_Compendium.pdf (last visited
February 22, 2007).
Page 10 of 	12
must presume that a legislature says in a statue what
it means and means in a statute what it says there.
Connecticut National Bank v. Germain, 503 U.S. 249, 253-54
(1992).
One other issue remains to be considered. 	The
Administrative Office of the United States Court’s Bankruptcy Fee
Compendium III 12 (April, 2006) provides on pp. 21-22 in part as
follows:
The Court’s Claim in a Subsequent Bankruptcy. Once the
debtor with unpaid fees files a new petition, the clerk
must stop all action to collect the unpaid fees; the
court is merely an unsecured creditor in the new case.
Nevertheless, the clerk may have no authority to file a
proof of claim in the new case. 	Only the Department of
Justice has authority to represent the United States in
litigation, and whether filing a proof of claim rises
to litigation or remains a ministerial collection
action is open to interpretation. 	Clerks should confer
with their district’s United States Attorney, and they
should coordinate their efforts to assert the court’s
claim with that office.
(Footnotes omitted.)
Section 707(a) lists nonpayment of fees as a ground on which
the court may dismiss a case sua sponte. 	The statute also
prescribes what the remedy is: dismissal, rather than filing a
proof of claim. 	There is thus no need to refer this matter to
the United States Attorney for resolution.
Conclusion and Order
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13 Whether the payment could be made over a period of time
in a chapter 11, 12 or 13 case, as part of a plan, is not before
the Court in this case.
Page 11 of 	12
The Court therefore concludes that the phrase “any fees or
charges required under chapter 123 of title 28” is not limited to
those fees or charges arising out of the Debtor’s current case,
but in this instance also includes the $144 remaining unpaid from
his previous chapter 13 case. 	Given that conclusion Debtor
should now be afforded the opportunity to make the payment in
order to continue his current case. 	For that reason, the Court
will conduct a hearing to confirm with Debtor what his intention
is. 	Since this case is a chapter 7 case, the debt will have to
be paid relatively promptly. 13
IT IS THEREFORE ORDERED as follows:
1. 	The Court will conduct a hearing on March 12, 2007 at 9:30
a.m. in the Hearing Room, Room 13102, 13 th Floor, Dennis
Chavez Federal Building and United State Courthouse, 500
Gold Avenue, SW, Albuquerque, NM 87102 at which the Debtor
must appear in person or by telephone*, and at which the
Court will set a deadline for payment of the $144; and
2. 	The Court shall enter an order dismissing this case unless
Debtor pays the $144 remaining due from the previous
bankruptcy case by the deadline to be set by the Court.
Honorable James S. Starzynski
United States Bankruptcy Judge
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Page 12 of 	12
copies to:
Timothy A Domenico
1100 Olive St.
Denver, CO 80220
William P Gordon
Attorney for Debtor
2501 Yale Blvd SE Ste 204
Albuquerque, NM 87106-4357
Kieran F. Ryan
Chapter 7 Trustee
PO Box 26
Las Cruces, NM 88004-0026
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Kelley L. Skehen
Chapter 13 Trustee
625 Silver Avenue SW
Suite 350
Albuquerque, NM 87102-3111
United States Attorney
PO Box 607
Albuquerque, NM 87103
* Counsel/parties may appear by telephone if a written request is
received in the Court’s Chambers by 5:00 P.M. of the business day
prior to the hearing. 	Requests to appear by telephone may be
faxed to (505) 348-2432 (this fax number may be used only for
this purpose), or may be sent by e-mail only to Judge
Starzynski’s chambers at starzynski@nmcourt.fed.us 	The e-mail
must have a subject heading that includes the word “telephone”,
correctly spelled. 	The text of the request must contain your
name, the case name, date and time of hearing, and the number at
which you can be reached when we call you for the hearing. 	Do
not send your request to the Clerk’s office and do not file your
request as a pleading.
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