Matson v. Alarcon

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRUCE H. MATSON, Trustee of the 
LandAmerica Financial Group,
Incorporated Liquidated Trust,
Trustee-Appellant,
v.
DIEGO ALARCON; EMILY E. ANDERS;
BRUCE A. AVILA; ANNELISE J.
BRADDOCK; STEVEN P. BAKER;
MICKEY J. BARKER; MICHAEL
BARLOW; DIANNE F. BIGBIE; FRANK
E. BILLINGS, JR.; RHONDA L.
BITTERMAN; JOHN C. BOMMARITO;
NANCY BOYER; KIMBERLY L.
CODAY; SHAWN D. COSMAN; NANCY  No. 10-2352
DEANGELO; BELINDA DURON;
TAMMY J. ELLEY; LAWRENCE M.
FURLONG; MICKEY GARCIA; RICHARD
GRAB; JOANNE S. GUNN; PAMALA
M. HARVEY; ELIZABETH HAYNES;
MELINDA S. HURD; JUDITH A . V.
KANE; LINDA A. KEAN; DENISE
KING; KEIKO LAM; MONIQUE
LAUFAU; LEA L. LAUTENSCHLAGER;
JOHN A. MAASS; FRANK P.
MARCARIO; KATHLEEN A.
MCADAMS; REGINA M. MORRISON;
JENNY NORTHCUTT;

2 MATSON v. ALARCON

GAIL M. O’HANLEY; VANAH G. 
RAFANELLI; KELLY S. ROBBINS;
LACEY M. ROBBINS; JULIE A.
ROBERTS; CHARI ROBINSON; LOREE
A. RUSSO; SVEN M. RUTH; SHARON
MARIE SAYRE; CHARLENE SCHUH;
JENNIFER F. SIEM; J. ALAN SMELKO;
MICHAEL S. SMITH; DAWN M.
SMITH; JANICE SPARROW; ROBERT
M. STILLWAGON; MARY TAMMINGA;
JERRI THURMAN; NOEL M. TOWNES;
JINXIE WEIDMARK; WENDY L.
WELCH; BETTY WHELAN; ROBERT
M. WILSON; ELIZABETH S.
WOODROOF; PAUL YAO; EDWARD R.
ZAVAL; STEPHEN D. BROOKS;
DEANNA B. BRUCE; NAOMI L.
CAMPANALE; MARTHA A. 
CARTLEDGE; THOMAS N. CATANESI;
STEVEN A. COLVIN; BRIAN W.
CRESS; JENNIFER L. DANSER;
MELINDA CRYSTAL DAVIS; BRIAN K.
DREW; GARY EVERITT; STEVEN L.
FAHRENKROG, II; KIM FANUCCHI;
SHARON M. FOX; KAMILA GRIGAR;
EDUARDO GUEVARA; FAITH HANE;
SYDNIE HARMAN; KEVIN W. HARRIS;
ARLENE L. HAWLEY; WADE
HERMAN; TRACEY HUNTINGTON;
SARA E. JONES; MARY KENNEDY;
DANA KLIMA; RICHARD T. KNAPICK;
REBECCA LAWSON; STEPHANIE
LAWSON; GREGORY LEE; MICHELE
E. LEFEVER;

 MATSON v. ALARCON 3

MARIVEL LEON; CHRISTOPHER 
LESEURE; DAVID L. LINGERFELT;
GREGG H . C. LUM; PAMELA S.
MANNIA; PETER F. MASELLI; SARAH
A. MCBRIDE; CATHERINE JEAN
MILLS; MIKE D. MURRAY; DONNA
M. O’DELL; ALINA A. OPREA;
BEVERLEY J. PACKARD; MICHAEL
SAWCHAK; DEBORAH J. SMITH;
PAULA M. SMITH; SUZANNE M.
SMITH; NATALIE ST. CROIX;

CHRISTOPHER H. STAMEY; LINDA
TAAFFE; MARVIN CLIFTON TAYLOR;
SAMUEL E. TAYLOR; GLADYS D.
TERRIER; ROBERT L. THOMAS, JR.;
TANGALIA TIMBERLAKE; GEORGE N.
VIDACOVICH, JR.; VERNA VISCIGLIA;
SHERRI WEISS; STEPHANIE R.
WIGGINS; JOSEPH B. WYKEL; LONNIE
J. YETT; TRAVIS BARDEN; CHARLES
C. CAIN; ERIK G. IVERSON; DONALD
E. JONES, JR.; LAURA A. MUTRUX;
WENDY R. HEVENER,
Claimants-Appellees.

Appeal from the United States Bankruptcy Court
for the Eastern District of Virginia, at Richmond.
Kevin R. Huennekens, Bankruptcy Judge.
(3:08-bk-35994)

Argued: May 10, 2011

Decided: July 6, 2011
4 MATSON v. ALARCON
Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Niemeyer and Judge King joined.

COUNSEL

ARGUED: Christopher Lawrence Perkins, LECLAIRRYAN,
PC, Richmond, Virginia, for Appellant. Joshua David McKar-
cher, COVINGTON & BURLING, LLP, Washington, D.C.,
for Appellees. ON BRIEF: Christian K. Vogel, LECLAIR-
RYAN, PC, Richmond, Virginia, for Appellant. Michael St.
Patrick Baxter, COVINGTON & BURLING, LLP, Washing-
ton, D.C., for Appellees.

OPINION

KEENAN, Circuit Judge:

In this case, a trustee of a bankruptcy estate filed objections
in the bankruptcy court to the requested priority treatment of
a portion of severance compensation claims filed by the debt-
or’s former employees (the claimants). The bankruptcy court
overruled the trustee’s objections and, under 28 U.S.C.
§ 158(d)(2)(A)(i), certified an appeal to this Court.

On appeal, the trustee contends that the claimants "earned"
their severance compensation over the entire course of their
employment. The trustee asserts that, therefore, under 11
U.S.C. § 507(a)(4), only a pro-rated portion of the claims was
"earned" within 180 days preceding the bankruptcy petition
and was entitled to priority treatment. We disagree with the
trustee’s position, and conclude that the claimants "earned"
 MATSON v. ALARCON 5
their severance compensation on the date they became partici-
pants in the debtor’s severance plan immediately after their
termination from employment. Accordingly, we affirm the
bankruptcy court’s order.

I.

In April 2004, LandAmerica Financial Group, Inc. (Lan-
dAmerica) established a "Severance Benefits Plan" (the plan),
which stated a purpose "to assist eligible Employees upon ter-
mination" of employment. The plan provided "severance ben-
efits to eligible Employees who become Participants" in the
plan. An employee qualified as a participant in the plan when
the employee 1) was terminated without cause, 2) signed a
severance agreement and release, and 3) certain other exempt-
ing circumstances were not present. Those circumstances
included that the employee was not rehired within 30 days of
termination, the employee was not offered an "equal" position
with LandAmerica within a 50-mile radius, and the termina-
tion action was not due to the employee’s death or resigna-
tion.

Once employees became participants in the plan, they were
entitled to receive compensation equal to their weekly salary
for a certain number of weeks. The number of weeks of com-
pensation to which a participant was entitled was based on the
employee’s length of service to LandAmerica. For example,
under the plan established in 2004, an eligible participant who
worked for more than one year but less than two years would
receive severance compensation equal to two weeks of pay,
while an employee who worked at least eight years but less
than ten years would receive severance compensation equal to
six weeks of pay.

The plan also provided that a participant would receive this
severance compensation either in a single sum or in monthly
installments over a defined period of time. LandAmerica’s
board of directors (the board) retained the unilateral right to
6 MATSON v. ALARCON
"modify, alter, or amend the Plan, in whole or in part," or to
eliminate the plan entirely. In 2008, the board slightly
amended the plan by decreasing the number of weeks of sal-
ary that an eligible participant could receive based on the
employee’s years of service.1

Between August 2008 and November 2008, within the last
180 days before LandAmerica filed its bankruptcy petition,
LandAmerica terminated the employment of the claimants,
Diego Alarcon and 124 other employees. Based on their ter-
mination and the fact that the other conditions of the plan
were satisfied, the claimants became participants in the plan.
However, LandAmerica did not pay the claimants any amount
of the severance compensation due.

After LandAmerica filed its bankruptcy petition on Novem-
ber 26, 2008, the claimants filed proofs of claims against the
bankruptcy estate for the severance compensation they were
due under the terms of the plan, as amended in 2008. The
claimants asserted that their severance claims were entitled to
priority treatment up to the statutory maximum amount pro-
vided in 11 U.S.C. § 507(a)(4).

Bruce H. Matson, Trustee of the LandAmerica Financial
Group, Inc. Liquidation Trust (the trustee), did not object to
the amounts of the severance claims. However, he contended
that the claimants "earned" severance compensation over the
entire course of their employment and that, therefore, only the
portion of those claims "earned" within the 180-day period
before LandAmerica filed for bankruptcy (the pre-petition
period) was entitled to priority treatment under 11 U.S.C.
1
The amendments to the plan in 2008 also required that an employee
must work at least one year before being eligible to receive any severance
pay. The plan as it existed before these amendments permitted an
employee who had worked at least six months to receive severance pay.
The substance of these amendments, however, does not affect the issue
presented in this appeal.
 MATSON v. ALARCON 7
§ 507(a)(4). To calculate the amount of severance compensa-
tion "earned" during the pre-petition period, the trustee pro-
posed a formula that computed an employee’s daily rate of
severance compensation. The trustee provided an example of
the application of his proposed formula to one of the claims
at issue during a hearing held by the bankruptcy court.

In that example, the employee worked for LandAmerica for
a total of 437 weeks, a period exceeding eight years, and was
entitled under the plan to receive $8,500 in severance com-
pensation. Before being terminated from employment, the
employee worked 22 weeks during the pre-petition period.
Because the period of 22 weeks represented 5.03% of the
employee’s 437 total weeks of employment, the trustee con-
tended that the employee "earned" 5.03% of $8,500 during
the pre-petition period, or $429.31. Thus, the trustee con-
tended that only this portion of the employee’s severance
claim was entitled to priority treatment under 11 U.S.C.
§ 507(a)(4), while the remaining amount, $8,070.69, should
be classified as an unsecured general claim. After the hearing,
the bankruptcy court issued a memorandum opinion overrul-
ing the trustee’s objections, and entered an order in favor of
the claimants on this issue.

II.

A.

The question raised in this appeal presents an issue of law,
requiring this Court to apply a de novo standard of review. In
re Bateman, 515 F.3d 272, 277 (4th Cir. 2008).

B.

Section 507 of the Bankruptcy Code sets forth the catego-
ries of expenses and claims that are entitled to priority treat-
ment in the distribution of a debtor’s estate. 11 U.S.C. § 507.
In the enumerated list provided in the statute, a fourth priority
8 MATSON v. ALARCON
is given to "allowed unsecured claims, but only to the extent
of $10,950 for each individual . . . earned within 180 days
before the date of the filing of the petition. . . for (A) wages,
salaries, or commissions, including vacation, severance, and
sick leave pay earned by an individual."2 11 U.S.C.
§ 507(a)(4) (emphasis added). Therefore, we must determine
the method by which an individual "earns" "severance pay,"
within the meaning of this statute, to decide whether the
claimants "earned" their full severance pay or only a pro-rated
portion of that pay during the pre-petition period.

Under established principles of statutory interpretation, we
consider the disputed statutory terms in the context in which
they are employed. United States v. Groce, 398 F.3d 679, 681
(4th Cir. 2005). When the terms at issue are not defined in the
statute, we apply their plain and ordinary meaning. Scrim-
geour v. Internal Revenue, 149 F.3d 318, 327 (4th Cir. 1998).
This plain and ordinary meaning provides the "most reliable
indicator of Congressional intent." Soliman v. Gonzales, 419
F.3d 276, 281-82 (4th Cir. 2005).

The interpretation of the word "earned," as it appears in 11
U.S.C. § 507(a)(4), presents an issue of first impression in this
Court. While the statute does not define the word "earned,"
we observe that to "earn" generally means to "receive as equi-
table return for work done or services rendered," or "to come
to be duly worthy of or entitled." Webster’s Third New Inter-
national Dictionary 714 (2002). The first of these definitions
plainly encompasses the common understanding of the man-
ner in which employees "earn" wages, salaries, and commis-
sions, the three general types of compensation listed in 11
U.S.C. § 507(a)(4)(A). Employees typically receive such
compensation in exchange for their employment performance.
See, e.g., In re Public Ledger, 161 F.2d 762, 770 n.7 (3d Cir.
2
Effective April 1, 2010, and applicable to cases commenced on or after
that date, the statutory maximum in 11 U.S.C. § 507(a)(4) was increased
to $11,725. 75 Fed. Reg. 8747-48 (Feb. 25, 2010).
 MATSON v. ALARCON 9
1947) (wages are agreed-upon compensation received for ser-
vices rendered); In re Gurewitz, 121 F. 982, 983 (2d Cir.
1903) (same). The triggering events permitting employees to
receive wages, salaries, and commissions generally lie within
the employees’ control upon performance of their work, sub-
ject to the terms of the employment agreement.

The word "earned," as used in 11 U.S.C. § 507(a)(4)(A),
applies not only to wages, salaries, and commissions, but also
to several other types of compensation, including "severance
pay." The term "severance pay" is not defined in the statute.
However, that term generally is defined as "an allowance usu-
ally based on length of service that is payable to an employee"
upon termination without cause. See Webster’s Third New
International Dictionary 2081 (2002). The purpose of such
severance compensation is to "alleviate the consequent need
for economic readjustment" and "to recompense [the
employee] for certain losses attributable to the dismissal."
Straus-Duparquet, Inc. v. Local Union No. 3, Int’l B’hood of
Elec. Workers, 386 F.2d 649, 651 (2d Cir. 1967).

In contrast to wages, salaries, and commissions, the trigger-
ing events allowing employees to receive "severance pay" lie
within the employer’s control and its decision both to provide
severance compensation and to terminate the employment
relationship. Thus, employees do not "earn" "severance pay"
in exchange for services rendered as they do when they "earn"
wages, salaries, and commissions. Rather, employees receive
"severance pay" as compensation for the injury and losses
resulting from the employer’s decision to terminate the
employment relationship. This ordinary understanding of the
term "severance pay" is consistent with the stated purpose of
the plan in the present case, namely, to assist employees upon
termination.

In view of the meaning and the purpose of severance com-
pensation, we conclude that the second definition of "earn"
described above, to become entitled, represents the ordinary
10 MATSON v. ALARCON
meaning of the manner in which employees "earn" "severance
pay," within the intendment of Congress in 11 U.S.C.
§ 507(a)(4)(A). We therefore hold that an employee "earns"
the full amount of "severance pay" on the date the employee
becomes entitled to receive such compensation, subject to sat-
isfaction of the contingencies provided in the applicable sev-
erance compensation plan.3 See id. at 651 (explaining that
severance pay is not earned from day to day and does not
accrue over time).

In the present case, when the claimants became participants
in the plan upon their termination from employment and their
signing a severance agreement and release, the claimants
earned severance compensation. While the amounts of the
severance compensation to which the claimants were entitled
under the plan were based on their length of service to Lan-
dAmerica, this method of calculation did not, as the trustee
contends, dictate that those employees earned severance com-
pensation over the entire course of their employment. The
trustee’s position in this regard conflicts both with the pur-
pose of severance compensation and the plain terms of the
plan at issue.
3
We find no merit in the trustee’s argument in favor of pro-ration based
on the statute’s legislative history when Congress lengthened the pre-
petition period from 90 days to 180 days. During that legislative process,
the House of Representatives’ Report explained that the effect of this
change was that a "greater portion" of unpaid vacation, severance, and
sick leave pay would be entitled to priority payment. H.R. Rep. No. 109-
31, pt. 1 at 1401 (2005). The use of the phrase "greater portion," however,
did not clearly express a legislative intent that employees "earn" "sever-
ance pay" over the entire course of their employment. See Holland v. Big
River Minerals Corp., 181 F.3d 597, 603 n.2 (4th Cir. 1999) (explaining
that courts look beyond the plain meaning of a statute only in the rare
instance in which Congress has clearly expressed a contrary legislative
intent). An alternative conclusion that could be drawn from this legislative
history is that Congress intended to provide employees with a greater win-
dow of eligibility for priority regarding such vacation, severance, and sick
leave pay "earned" during the 180-day period.
 MATSON v. ALARCON 11
Our conclusion is supported by the fact that the board
implemented the plan and retained the right to amend the plan
or to eliminate it entirely. If we were to hold that employees
earned severance compensation over the entire course of their
employment, an employee who began working for Land-
America before the plan was established in 2004 necessarily
would have earned severance compensation before Land-
America had even adopted a severance benefits plan. More-
over, if the board had eliminated the plan before an employee
was terminated, then, under the trustee’s position, that
employee would have earned severance compensation for a
period of time but would never receive that compensation.

Finally, our conclusion is not altered by decisions of our
sister circuits addressing the priority treatment of severance
compensation in the context of administrative expense claims
permitted under 11 U.S.C. § 503(b)(1)(A). Many of those
courts have held that severance compensation based on length
of employment has priority as an administrative expense of
the bankruptcy estate only to the extent that the compensation
is based on services provided to the bankruptcy estate after
the debtor files for bankruptcy. See In re Roth Am., Inc., 975
F.2d 949, 957 (3d Cir. 1992); In re Mammoth Mart, Inc., 536
F.2d 950, 953 (1st Cir. 1976); In re Health Main. Found., 680
F.2d 619, 621 (9th Cir. 1982); but see Straus-Duparquet, 386
F.2d at 651.

As the bankruptcy court explained in its memorandum
opinion in this case, however, 11 U.S.C. § 503(b)(1)(A), the
current codification of the statute at issue in those other cases,
and 11 U.S.C. § 507(a)(4), the statute at issue in this case, are
materially different. Section 503(b)(1)(A) does not use the
word "earned" or specifically include "severance pay" as a
form of wages, salaries, and commissions. Instead,
§ 503(b)(1)(A) requires a calculation of the value of "services
rendered" in a period of time after a debtor files its bank-
ruptcy petition. See In re Pittston Stevedoring Corp., 40 B.R.
424, 427-28 (Bankr. S.D.N.Y. 1984) (stating that "earned
12 MATSON v. ALARCON
within" is distinct from "service rendered within" and that
"earned" "allows for some variation according to agreement
between employers and employees" while "services rendered"
does not). Therefore, we remain of the opinion that under 11
U.S.C. § 507(a)(4), an employee "earns" the entirety of his or
her severance compensation on the date that the employee
becomes entitled to receive such compensation under the
applicable severance compensation plan.

III.

Accordingly, we affirm the bankruptcy court’s holding that
the severance claims at issue are entitled to priority treatment
under 11 U.S.C. § 507(a)(4) in amounts no greater than the
maximum amount provided by statute.

AFFIRMED