Petition for Writ of Certiorari — Philip G. Barry, Petitioner v. Thomas Perkins, et ux.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. 2019

iecSDHTus'

FILED

15 2020

PHILIP.G. BARRY,

5£a£EOFTHECLERK

Petitioner

V.

THOMAS PERKINS, SALLY PERKINS,

Respondents.

\

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

' PHILIP G. BARRY

Petitioner pro se

Philip Barry #77573-053

F.C.I. P.O. Box 2000

Joint Base MDL, NJ 08640

QUESTION PRESENTED

Whether the so-called "Rooker-Feldman Doctrine" strips

bankruptcy and other lower federal courts of jurisdiction to

avoid or otherwise declare a state court judgment void ab initio

upon a finding that the state court action was taken in violation

of the United States Bankruptcy Code's Automatic Stay provisions.

(11 U.S.C. §362(a))

( i )

TABLE OF CONTENTS

page:

Questions Presented .......................... .

Table of Authorities

.

....

i

iv

1

Petition for a Writ of Certiorari

Opinions Below .....................................

.

Jurisdiction .............................................................

1

.

1

1

Statement of the Case .......................................

The Rooker-Feldman Doctrine: An Overview .

2

4

Reasons for Granting the Writ

7

Relevant Statutory Provisions

.

.

.

1. The Second Circuit's decision is in direct conflict

with the decisions of multiple other United States

Courts of Appeals on this important matter of en­

7

forcement of the Bankruptcy Code. ......

2. The Second Circuit has sanctioned a district court

bankruptcy appeal opinion which was a radical depar­

ture from the long-accepted course of jurisprudence

11

on this issue

3. The Second Circuit has decided this important

federal question in a way which is contrary to

several relevant decisions of this Court, and

which flouts this Court's emphatic admonishments

on the failure of lower courts to exercise due

federal question jurisdiction.......................................

15

4. This decision, if left standing, will seriously

undermine conformance with the Constitution's

mandate of Bankruptcy Law uniformity as applied

among the states.......................... ..................................

( ii )

17

5. The same Rooker-Feldman rationale as condoned

by the Second Circuit, if unchecked, will have

harmful spillover effects on the enforcement

and uniform application of other Bankruptcy

Code provisions, and of federal law generally .... . 19

20

Conclusion

Also submitted:

Certificate of Mailing

Certificate of Service

Memorandum, Opinion and Order, District Court E.D.N.Y.

A1-A6

Judgment of the District Court sitting on Bk. Appeal

A7

Order of the 2nd Circuit dismissing Appeal

A8

A9

Order of the 2nd Circuit denying panel & enbanc rehearing

( iii )

TABLE OF AUTHORITIES

page

Cases :

Caldwell v. DeWoskin .................................................................

District of Columbia Court of Appeals v. Feldman

Exxon Mobil Corp. v. Saudi Basic Industries Corp.

Gruntz, In re:...............................................

Johnson v. DeGrundy ..............................................

Kalb v. Feuerstein

.

.

.................................

Klein, In re:

...........................................................

10

4

. 5, 16

9, 13, 15

4

9, 11-12, 13, 14

Lance v. Dennis

....................................................

Mahan v. Sec'y of U.S. Dept, of State, et'al.

Marshall v. Marshall ..............................................

Rooker v. Fidelity Trust Co.................................

Simonoff v. Mehdi Saghafi, et al.

Skinner v. Switzer

..............................................

.

10

. 5, 6, 16

6

6

4

8

. 5, 16-17

Statutes:

11 U.S.C. §362(a) .......................................

11 U.S.C. §§ 544, 547, 548, 549 .

.

1, 7, 9

9

11 U.S.C. §§ 1129, 1325 ..........................

11

U.S.C. §§ 727, 1141, 1328

.

. .

28

U.S.C. §158(1) . . .

.

.

. .

28 U.S.C. § 158(d)(1).................................

9

28

U.S.C. §1254(1)

. .

.

.

. .

28 U.S.C. §1257 ............................................

1

4

4

28 U.S.C. §1331 ............................................

Bankruptcy Act of 1800 § 2,2 Stat. 19

9

3

3

21 .

17

of 1841 § 6,5 Stat. 440 > 445

of 1867 § 1, 14 Stat. 517

of 1898 § 2, 30 Stat. 544 5 545

17

17

17

Federal Rules of Appellate Procedure II 6(b) .

Federal Rules of Bankruptcy Procedure 7001 .

3

2

Bankruptcy Act

Bankruptcy Act

Bankruptcy Act

Rules:

( iv )

United States Constitution:

Article I Section 8 .

Article III Section 2

17

4

Reference:

Black's Law Dictionary, 10th Edition

( v )

4

Petition for a Writ of Certiorari

Petitioner Philip G. Barry respectfully petitions for a writ

of certiorari to review the order of the United States Court of

Appeals for the Second Circuit as upheld by all the active mem­

bers of the court polled pursuant to a motion for reconsideration

enbanc, which affirmed a judgment of the United States District

Court for the Eastern District of New York in an appeal from a

decision of the Bankruptcy Court dismissing in part a bankruptcy

adversary proceeding brought by the Petitioner.

Opinions Below

The Second Circuit's orders are unpublished and are reproduced

in the Appendix. The district court's bankruptcy appeal opinion is

accessible at 2019 US Dist LEXIS 42767 (17-CV-3078 EDNY) and also

reproduced in the Appendix. The bankruptcy court's order dismissing

the adversary proceeding in part is unpublished and reproduced in

the Appendix.

Jurisdiction

The Second Circuit's order dismissing the appeal from the

district court's decision was entered on September 11, 2019. The

Second Circuit'^ order denying panel rehearing and reconsideration

enbanc was entered on October 25, 2019. This Court, has jurisdiction

pursuant to 28 U.S.C. §1254(1).

Relevant Statutory Provisions

This case principally involves the United States Bankruptcy

Code's ("The Code") Automatic Stay Provisions ("The Stay") and

the U.S. Constitution's mandate that Congress "establish uniform

Laws on the subject of Bankruptcies throughout the United States."

( 1 )

Statement of the Case

The subject case is a bankruptcy adversary proceeding brought

by the Petitioner against the Respondents by the filing of a com­

plaint on July 27, 2016 in the Bankruptcy Court for the Eastern

District of New York. ("E.D.N.Y.") The Petitioner had been the Debtor,

and the Respondents creditors in the underlying bankruptcy case.

The bankruptcy court assigned case number 16-1135(nhl) to the ad­

versary proceeding. That court had jurisdiction pursuant to Federal

Rules of Bankruptcy Procedure Rule 7001.

The Complaint alleged multiple violations of 11 U.S.C. 362(a).

It was specifically alleged that the defendants had engaged in

myriad prohibited acts with respect to both real property of the

Debtor and personalty of the bankruptcy estate during the pendency

of the bankruptcy case without relief from the Stay being granted.

The defendants moved for dismissal of the action. A hearing on

the motion was held on March 28, 2017. On April 14, 2017 the bank­

ruptcy court issued a final order dismissing the causes of action

respecting the real property. The causes of action relating to the

personalty remain active as of the present date.

The dismissed causes of action consisted of two principal

elements. One was a state foreclosure action against real property

of the Debtor. The other was the portion of that state court fore­

closure action which sought a deficiency judgment for the unsecured

balance of the debt. That portion of the foreclosure action is the

subject of this petition. A judgment in the amount of approximately

$1.2 million was ultimately granted by the state court.

An appeal from the bankruptcy court's order of dismissal was

taken to the district court which had jurisdiction pursuant to

( 2 )

28 U.S.C. §158(1). The district court affirmed the decision of

the bankruptcy court on March 18, 2019. With respect to the de­

ficiency judgment, the court affirmed on the ground that under the

"Rooker-Feldman doctrine" the bankruptcy court has no jurisdiction

to vacate the deficiency judgment [even if it was granted in vio­

lation of the Automatic Stay] "because it would be a modification

of a state court judgment." (District Ct. Decision p. 9)

An appeal from the district court's affirmance was taken to the

Second Circuit Court of Appeals which had jurisdiction pursuant to

28 U.S.C. §158(d)(l) and Federal Rules of Appellate Procedure II

Rule 6(b). The appellate panel dismissed the appeal ;by order dated

September 11, 2019. The court denied panel rehearing and reconsid­

eration en banc on October 25, 2019.

( 3 )

The "Rooker-Feldman" Doctrine: An Overview

The so-called Rooker-Feldman doctrine is the spawn of inverse

inferences from the cobbling together of 28 U.S.C. §1331 which

codified a portion of Article III Section 2 of the Constitution

with respect to district courts having "original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties

of the United States,"

with 28 U.S.C. §1257 which permits this

Court to review "final judgmentsj or decrees rendered by the high­

est court of a State in which a decision could be had."

The two cases which gave the doctrine its name are Rooker v

Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68L. Ed. 362 (1923)

and District of Columbia Court of Appeals v Feldman, 460 U.S. 462,

75 L. Ed. 2d 206' > 103 S. Ct. 1303 (1983). Although Rooker predates

the statutes upon which the doctrine is putatively built, that

decision did cite the years 1911 and 1916 Judicial Code forerunners

of the current statutes.

The Black's Law Dictionary definition cites this Court and

the doctrine accordingly appears straightforward and innocuous:

"...This doctrine precludes 'a party losing in state court...

from seeking what in substance would be appellate review

of [a] state court judgment in a U.S. district court,

based upon the losing party's claim that the state judg­

ment itself violates the loser's federal rights.' Johnson

v. Degrundy, 512 US 997, 1005-06 114 S. Ct. 2647 2654 (1994)"

It is of course acknowledged that district courts need to have

the means to dispose of cases in which parties attempt to improperly

shoehorn a losing state case into the ambit of a federal question.

Although the courts already had the mechanisms for doing so, i.e.

preclusion, abstension, and full faith and credit, Rooker-Feldman

( 4 )

held out the promise of a catchall streamlined approach which

soon coalesced into a simplistic four-question jurisdictional

test.

Although this Rooker-Feldman test functioned to provide the

correct decision most of the time, its inherent flaws and the

reflexive application of its formulaic template have produced

enough contradictory decisions and reversals of bankruptcy and

district court decisions so as to rank the doctrine among the most

troublesome judicial creations of all time.

In the words of this Court, "[T]he Rooker-Feldman doctrine

has been applied by [the] Court only twice, i.e., only in the two

cases from which the doctrine takes its name..." Skinner v.

Switzer, 562 U.S. 521, 531, 131 S. Ct. 1289, 1297, 179L. Ed. 2d

233 (2011) Nevertheless, "lower federal courts have variously

interpreted the Rooker-Feldman doctrine to extend far beyond the

contours of the Rooker and Feldman cases." Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 -S. Ct. 1517, 1521,

161 L. Ed. 2d 454 (2005). As a consequence, this Court has been

compelled to often take up this issue to reinforce the narrow

parameters of Rooker-Feldman, and to admonish lower courts for

their expansive applications thereof. See Id.; Lance v. Dennis,

546 U.S. 459, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006);

Skinner v. Switzer, 562 U.S. 521, 531, 131 S. Ct. 1289, 1297, 179

L. Ed. 2d 233 (2011).

Despite the above-cited cases and the admonishments therein,

Rooker-Feldman, and in particular, overly-broad applications there­

of, have continued to exhibit preternatural resiliency within

some of the Circuits, much to the chagrin of legal scholars and

jlirists .

( 5 )

Although Rooker-Feldman related difficulties beleaguer courts

to this date,

Justice Stevens was quite passionate in expressing

his hopes that he'd penned this Court's final words on the subject

back in 2006:

"Rooker and Feldman are. strange bedfellows.. Rooker, a

unanimous, three-page opinion written by Justice Van

Devanter in 1923 correctly applied the simple legal

proposition that only this Court may exercise appel­

late jurisdiction over state-court judgments^ Feldman,

a non-unanimous, 25-page opinion written by Justice

Brennan in 1983 was incorrectly decided and generated

a plethora of confusion and debate among scholars and

judges. Last Term, in Justice Ginsburg's lucid opinion

in Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

the Court finally interred the so-called "Rooker-Feld­

man doctrine." And today, the Court quite properly

disapproves of the District-Court's resuscitation of

a doctrine that has produced nothing but mischief for

23 years."

(Lance v. Dennis 126 S. Ct. 546 U.S. 163L. Ed. 2d

467, 468 (2006) )

(internal citations omitted)

(emphasis added)

"I would provide the creature with a decent burial

adjacent to the resting place of the Rooker-Feldman

doctrine."

(Marshall v. Marshall 126 S. Ct. 1735, 1752, 164

L. Ed. 2d 480 (2006) (J. Stevens, concurring)

1. For a recent example of an appellate court wrestling with

Rooker-Feldman, see Mahan v. Sec'y of United States Dept.

of State, Attorney General of New Jersey et al. 938 F. 3d

~~ 453; 2019 U.S. App LEXIS 28047 (Sept. 18, 2019) The case

is a remarkable example of navigation down tortuous Rook­

er-Feldman roads.

( 6 )

Reasons for Granting the Writ

1. The Second Circuit's decision is in direct conflict

with the decisions of multiple other United States

Courts of Appeals on this important matter of en­

forcement of the Bankruptcy Code.

By its affirmance of the E.D.N.Y.'s bankruptcy appeal decision,

the Second Circuit has endorsed the following grounds for declining

to exercise federal jurisdiction over a violation of the Bankruptcy

Code's Automatic Stay provision. (11 U.S.C. 362(a)):

"...Judge Lord held that the Rooker-Feldman doctrine

deprived her of subject matter jurisdiction to re­

view the adverse, final state court judgments because

the state court had rejected the same arguments re­

garding the violation of the stay. ("[E]ven if it was

a violation you raised it and the judge did not accept

that and issued it anyway. So now you have a [Rooker]Feldman [issue] and 1 have no jurisdiction.")... I

find no reason to disturb Judge Lord's well-reasoned

decision.

Judge Lord's dismissal of the deficiency claim on this

ground is affirmed. Under the Rooker-Feld man doctrine,

lower federal courts lack subject matter jurisdiction

over a case if exercise over that case would result in

the reversal or modification of a state court judgment.

Federal district courts are barred from reviewing a

-state court judgment where the federal claim succeeds

only to the extent that the state court wrongly decided

the issues before it. Here, the appellant conceded that

the state court rejected the argument he raised before

Judge Lord— that the deficiency action violated the

automatic stay. In order to find in the appellant's

favor, Judge Lord would have had to determine that the

state court wrongly decided the issues before it, which

Rooker-Feldman does not allow. Moreover, under the Rooker Feldman doctrine, the Bankruptcy Court has no juris­

diction to vacate the deficiency judgment entered in

state court, because it would be a modification of a

state court judgment."

(Memorandum Decision and Order p. 6, 9)

(brackets and parentheses in original)

(internal citations omitted) (emphasis added)

( 7 )

The affirmance of the above-cited decision places the Second

Circuit at one far end of a now wide circuit split. At the opposite pole, the Sixth, Ninth

and Fourth, in roughly that order,

are the circuits which are most emphatic in categorical disagree­

ment with the Second Circuit's holding. The Third Circuit is em­

blematic of a middle ground among the appellate courts.

The following recent case which includes citations to earlier

Sixth Circuit cases, is a good representation of how the Circuit

evolved with respect to Rooker-Feldman, as well as giving a clear

showing of that court's present posture thereon:

"Likewise, reasonable minds could debate whether Saghafi's

counterclaims breached the Rooker-Feldman doctrine. See

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284, 291-93, 125 S. Ct. 1517, 161L. Ed. 2d 454

(2005) (clarifying the limited scope of the doctrine);

see also In re Sun Valley Foods Co., 801 F. 2d 186, 189

(6th Cir. 1986) (stating that the doctrine does not bar

collateral attacks on state judgments "alleged to have

been procured through fraud, deception, accident or

mistake" (cleaned up)). In fact, in dismissing the coun­

terclaims, the district court relied on Rooker-Feldman

precedent that we have since repudiated. See Coles v.

Granville, .448 F. 3d 853, 859 n. 1 (6th Cir. 2006)

(acknowledging that Exxon Mobil abrogated Catz v. Chalker,

142 F. 3d 279 (6th Cir. 1998)). As one member of this

court has explained, "the Supreme Court has enforced the

Rooker-Feldman limit on the jurisdiction of the federal

courts just twice. The Court1s most recent applications

of the doctrine suggest that may be it-that, if the

party's name is not Rooker or Feldman, or if the case

does riot present a virtually identical challenge, it

is unlikely that the doctrine strips the federal courts

of jurisdiction to hear the claim." In re Smith, 349

F. App'x 12, 17 (6th Cir. 2009)"

(Simonoff v. Mehdi Saghafi etal. 2019 U.S. App.

LEXIS 29046 19a0496n.06 Case No. 19-3001 9/26/19)

(emphasis added)

As seen above, the Sixth Circuit has correctly followed the

guidance of this Court and arrived at a very narrow view of the

doctrine. The Second Circuit on the other hand, has inexplicably

( 8 )

lurched in the opposite direction, thereby evincing the transience

of their past fidelity to this Court's directives in this regard.

The Ninth Circuit, sitting en banc, has provided perhaps the

best analysis of the Rooker-Feldman problem relative to bankruptcy

jurisprudence:

"Of course, the statutes that form the basis of the

Rooker-Feldman doctrine co-exist among other federal

jurisdictional laws. To derive a coherent theory of

federal jurisdiction, one must consider the entire

federal jurisdictional constellation. In this case,

aside from the statutes of general jurisdiction, two

other fixed jurisdictional stars draw our attention:

the federal laws of habeas corpus and bankruptcy.

It is well-settled that the Rooker-Feldman doctrine

does not touch the writ of habeas corpus. Indeed,

federal habeas-corpus law turns Rooker-Feldman on its

head. Rather than leaving state court judgments un­

disturbed, it provides expressly for federal collat­

eral review of final state court judgments... through

statutory writ of habeas corpus Congress has created

a comprehensive system of federal collateral review

of state court criminal judgments. Thus, habeas corpus

is not an "exception" to Rooker-Feldman, but a proce­

dure with roots in statutory jurisdiction parallel to —

and in no way precluded by— the doctrine.

So, too, it is with bankruptcy law. In apparent contra­

diction to the Rooker-Feldman theory, bankruptcy courts

are empowered to avoid state judgments, see e.g. 11

U.S.C. §§ 544, 547, 548, 549;

to modify them, see e.g.

11 U.S.C. §§ 1129, 1325; and to discharge them, see e.g.

11 U.S.C. §§ 727, 1141, 1328."

(in re: Gruntz 202 F 3d 1074 (9th Cir. en banc 2000))

(internal citations omitted) (emphasis added)

That court then went on to cite this Court with specific

respect to judicial violations of the Automatic Stay:

"...actions taken in violation of the automatic stay

are void. Further, 'judicial proceedings in violation

of the automatic stay are void.' As the Supreme Court

explained in Kalb, discussing the weaker predecessor

because that State court

statute to 11 U.S.C. §362(a)

had been deprived of all jurisdiction or power to pro­

ceed with the foreclosure, [all acts in aid of collec­

tion] — to the extent based upon the court's actions—

IH

were all without authority of law. Kalb 308 U.S. at 443.

(Id.)

( 9 )

The remainder of the Circuits are not particularly remark­

able in their Rooker-Feldman stances, although inter-circuit

inconsistencies are prevalent among them. Some of their juris­

dictional calls turn on the issue of whether the federal ques­

tion is "inextricably interwined" with issues decided in state

court

while others draw the line at whether there are "indepen-

dent claims" of harm which did not result from the collaterally

attacked state judgment itself. Meticulous analysis to determine

whether there is an independent source of federal jurisdiction

is scarce among the relevant decisions of these middling circuits.

Although arguably more nuanced than those of the Fourth,

Sixth, and Ninth Circuits, pertinent decisions of the Eighth

and Tenth Circuits nonetheless conflict with the subject Second

Circuit decision. See e.g. Caldwell v. DeWoskin 831 F 3d 1005 62

Bankr. Ct. Dec. 252 (8th Cir. August 5, 2016) (Vacating bankruptcy

appeal decision due to overly broad application of Rooker-Feldman)

and In re: Kline 514 Fed Appx 810 (10th Cir. April 18, 2013).

Prejudice to the Petitioner here caused by this split among

the Circuits is plainly apparent. Had the Petitioner resided in,

and therefore been a bankrupt debtor in most other Circuits, he

would not presently have a civil judgment of $1,176,971.60 re­

corded against him.

It is also nearly certain that in the absence of Supreme Court

review, Rooker-Feldman bankruptcy-related conflicts will continue

to afflict the federal courts. Given the current lack of consensus,

there is virtually no chance that the lower courts will be able to

resolve their differences without direction from this Court. The

( 10 )

unique aspect of bankruptcy appellate procedure, whereby a single

district court judge often effectively has the final word, increases the likelihood of more outlier Rooker-Feldman decisions

going forward. Without this Court's interdiction, a worsening of

the extant circuit split is more likely than not.

2. The Second Circuit has sanctioned a district court

bankruptcy appeal opinion which was a radical depar­

ture from the long-accepted course of jurisprudence

on this issue.

Although the Federal Bankruptcy Acts which are the precursors

of the present-day Bankruptcy Code, did specify the Supreme Court1

as the authority having jurisdiction to review state court judg­

ments purported to have been granted in violation of bankruptcy

law a watershed 1940 case in this Court is instructive in several

respects. In Kalb v. Feuerstein 84 LED 370, 308 US 433-444, decided

January 2, 1940, it was held that the filing of a bankruptcy

petition triggers an "automatic statutory ouster of jurisdiction

of all except bankruptcy courts over farmer-debtors and their prop­

erty..." Id_._ at 375.

In Kalb, the Supreme Court of the State of Wisconsin had held

that the stay provisions of the Bankruptcy Act were not self-execu­

ting, and therefore, in the absence of a specific judicial stay,

the subject foreclosure and sale were valid and not in violation

of the Act. This Court reversed and remanded.

1. The Rules of Appeal at the time likewise gave rise to a reason­

able inference that only this Court had such power: Appeal §599

Federal Questions-bankruptcy-stay of foreclosure actions.

3. A determination by a state court of the question whether a

provision of the Bankruptcy Act operates as an automatic stay

of foreclosure proceedings in state courts presents a Federal

question subject to review by the Supreme Court.

( U )

By the findings in Kalb, this Court helped bring clarity to

to lower court bankruptcy jurisdiction questions. Being that the

Stay was found to be self-executing, then it operates as an in­

junction against, inter alia, state court proceedings to collect

pre-petition debts of the bankrupt debtor, and such injunction

issues automatically on the petition date.

Therefore, a state court which issues a judgment in contra­

vention of the Stay has proceeded without jurisdiction, and has

also thereby engaged in an impermissible modification of the Stay.

When a bankruptcy court enforces its pre-existing injunction, it

is not second-guessing a state court after the fact, but rather,

it is the state court which second-guessed or otherwise misread

or ignored the federal court injunction.

Even if the Rooker-Feldman doctrine could be properly applied

in bankruptcy jurisprudence, the four-part jurisdictional short­

cut test it spawned in many of the circuits is fraught with risk

of fundamental errors.

At least two such subsidiary errors occurred here. A determin­

ation was made that the state court judgment preceeded the commence­

ment of the district court (i.e. bankruptcy court by standing order

of reference) proceedings. This would appear to meet one of the

prongs of the Second Circuit's four-part Rooker-Feldman quiz. While

it is true that the adversary proceeding was initiated after and in

part as a result of the state court judgment, the district court

started the clock at an arbitrary point in medias res.

An adversary proceeding is just that— a proceeding among ad­

versaries within an overarching bankruptcy case. For :this reason,

it is required that the proceeding be captioned with the complete {_ j

( 12 )

bankruptcy case title, case number, and Chapter number, above the

adversary parties caption and adversary proceeding number. It is

therefore the bankruptcy petition date which is determinative of

which came first— state judgment or federal jurisdiction. Here,

the petition date preceeded the state court judgment by approxi­

mately six years, and the commencement of the state case by four.

Another Rooker-Feldman test-prompted error is readily apparent

in the subject decision:

"In order to find in the appellant's favor, Judge Lord

would have had to determine that "the state court wrongly

decided the issues before it," which Rooker-Feldman does

not allow."

(Memo, Decision & Order p. 9 Appx at 5)

While the question of a court's jurisdiction with respect to

the Automatic Stay could be loosely termed one of the issues before

the court, it is deceptive to place it on the same plane as the

causes of action, evidence, etc. of the case.itself. Jurisdiction

is rather, a gatekeeping question— arguably the most important—

and if that question is answered incorrectly in the affirmative,

then the case is a nullity and no actual "issues" were enforceably

decided by it.

The Ninth Circuit in Gruntz cited Kalb to succinctly wrap up

these questions:

"In sum, by virtue of the power vested in them by Congress,

the federal courts have the final authority to determine

the scope and applicability of the automatic stay. "The

States cannot, in the exercise of control over local laws

and practice, vest State courts with power to violate the

supreme law of the land." Kalb, 308 U.S. at 439. Thus the

Rooker-Feldman doctrine is not implicated by collateral

challenges to the automatic stay m bankruptcy. A bank­

ruptcy court simply does not conduct an improper appellate

review of a state court when it enforces an automatic stay

that issues from its own federal statutory authority. In

fact, a reverse Rooker-Feldman situation is presented when

state courts decide to proceed in derogation of the stay,

( 13 )

ii

because it is the state court which is attempting_im­

permissibly to modify the federal court's injunction."

(Gruntz at 21-22)

As important as Kalb was for precedent and guidance in

deciding federal vs. state jurisdictional and deference ques­

tions, one must delve into the body of the facts of the case

to find an illustrative narrative of the perils of the shirking

of lower federal courts' unflagging duty to exercise jurisdiction,

as the Second Circuit has assented to here. Through inattentive

hasty application of the Second Circuit-approved yet flawed

Rooker-Feldman four-part test,1 the district court talked itself

out of its own proper jurisdiction in place at least since Kalb

eighty years ago.

Ernest Kalb was a Wisconsin farmer whose farm was purchased

by the mortgagees at a foreclosure sale which was confirmed sub­

sequent to Kalb having filed a petition for bankruptcy protection.

The Supreme Court of the State.of Wisconsin sustained a lower

state court dismissal of his suit against the mortgagees and

others for inter alia, violation of the bankruptcy court s exclu­

sive jurisdiction over the farmer and his property.

..J

His suit was brought "against the mortgagees, the sheriff,

and the judge who confirmed the foreclosure sale and issued the

writ of assistance, seeking damages for conspiracy to deprive

plaintiff of possession, for assault and battery, and for false

imprisonment." Kalb-at 372

1. The test is: 1. The federal court plaintiff lost in state

court. 2. The plaintiff complains of injuries caused by the

state court judgment. 3. The plaintiff invites district

court review of the judgment; and 4. The state court judgment

was rendered before the district court proceedings commenced.

( 14 )

While Kalb was asserting, correctly as it turned out, that

he was lawfully under federal law remaining in his home, he was

apparently physically dragged out of his home, off his farm, and

jailed. This is just one of countless unconscionable scenarios

along the detour the Second Circuit has just taken. Kalb's prop­

erty was acquired by the mortgagees. A more common occurrence is

that a blameless unrelated third party submits the winning bid in

a mortgage foreclosure. In that case, for example, a young couple

may renovate and move into their first home purchased at a fore­

closure auction, only to be notified later that their deed is in­

valid under federal bankruptcy law.

The Second Circuit's departure from eighty years of accepted

jurisprudence must be checked before exploited by creditors and

an almost unthinkable extent of harm ensues. "It is but slight

hyperbole to say that chaos would reign in such a system."

Gruntz at 24.

1

3. The Second Circuit has decided this important federal

question in a way which is contrary to several relevant

decisions of this Court, and which flouts this Court's

emphatic admonishments on the failure of lowers courts

to exercise due federal question jurisdiction.

The clear direction this Court provided in Kalb as discussed

in detail supra, should have precluded the tack taken here by the

Second Circuit. A more recent series of general admonitions re­

garding over-application of Rooker-Feldman renders their decision

( 15 )

all the more unaccountable:

First, Justice Ginsburg delivering the unanimous opinion

of this Court:

>

"This case concerns what has come to be known as the

Rooker-Feldman doctrine, applied by this Court only

twice, first in Rooker v. Fidelity Trust Co. (1923)

then, 60 years later, in District of Columbia Court

of Appeals,v. Feldman (1983). Variously interpreted

in the lower Courts, the doctrine has sometimes been

construed to extend far beyond the contours of the

Rooker and Feldman cases, overriding Congress' con­

ferral of federal court jurisdiction concurrent with

jurisdiction exercised by state courts... In the case

before us, the Court of Appeals for the Third Circuit

misperceived the narrow ground occupied by RookerFeldman, and consequently erred in ordering the federal

action dismissed for lack of subject-matter jurisdic­

tion. We therefore reverse the Third Circuit s judgment."

(Exxon Mobil Corp. vs. Saudi Basic Indus. Corp.,

544 US 280, 283, 284 125 S. Ct. 1517, 1521,.

161 L. Ed. 2d (2005)) (internal citations omitted)

Then, in a per curiam opinion the following term:

"Neither Rooker nor Feldman elaborated a rationale for

a wide-reaching bar on the jurisdiction of lower federal

courts, and our cases since Feldman have tended to em­

phasize the narrowness of the Rooker-Feldman rule...

Indeed, during that period, this Court has never applied

Rooker-Feldman to dismiss an action for want of juris­

diction. In Exxon Mobil, decided last term, we warned

that the lower courts have at times extended RookerFeldman far beyond the contours of the Rooker and Feldman cases . .. A more expansive Rooker-Feldman rule would

tend to supplant Congress' mandate under the Full Faith

and Credit Act... The judgment of the District Court is '

vacated, and the case is remanded for further proceedings

consistent with this opinion."

(Lance v. Dennis 546 US 459, 464. 467 126 S Ct

1198, 163L Ed 2d 1059 (2006))

(internal citations omitted)

And, then again in 2011, Justice Ginsburg delivering the

opinion of this Court:

"Skinner's litigation, in light of Exxon, encounters no

Rooker-Feldman shoal. If a federal plaintiff present[sj

( 16 )

[an] independent claim, it is not an impediment to the

exercise of federal jurisdiction that the same or a

related question was earlier aired between the parties

in state court... There was, therefore no lack of sub­

ject matter jurisdiction over Skinner's federal suit...

For the reasons stated, the judgment of the Court of

Appeals for the Fifth Circuit is reversed, and the case

is remanded for further proceedings consistent with

this opinion."

(Skinner v. Switzer 562 US 521 131 S C't 1289, 179L

Ed 2d 233, 243, 246 (March 7, 2011)

(Brackets in original) (internal citations omitted)

The above-cited words from three cases in the High Court

should have been sufficient to deter the Second Circuit's sanction

of the district court's reflexive disavowal of Congressionally

mandated

lower court jurisdiction. Unfortunately, the guidance

of this Court went unheeded, and another Rooker-Feldman related

interdiction is now essential.

4. .This decision, if left standing, will seriously undermine

conformance with the Constitution's mandate of Bankruptcy

Law uniformity as applied among the states.

The United States Constitution, Article I, §8 states that "The

Congress shall have Power To... establish... uniform Laws on the

subject of Bankruptcies throughout the United States;"

To fulfill this mandate, jurisdiction and authority over

bankruptcies have been vested in the federal district courts

since virtually the beginning of the Nation. See e.g. Bankruptcy

Act of 1800, §2, 2 Stat. 19, 21; Bankruptcy Act of 1841, §6, 5

Stat. 440, 445; Bankruptcy Act of 1867, § 1, 14 Stat. 517;

Bankruptcy Act of 1898, §2 30 Stat. 544, 545.

( 17 )

The expansive application of the Rooker-Feldman doctrine as

now sanctioned by the Second Circuit would seriously undermine

the uniform bankruptcy system as manifested through the Bankruptcy

Code. If state courts are permitted to issue binding judgments

which effectively modify the federal injunction emanating from

the Automatic Stay, as was the case here, the existing regime,

whereby each class of creditors is treated equally in bankruptcy,

would be replaced by a creditors' race to the state courthouse.

Even if this malady were to be confined to the Second Circuit,

the ambit of which includes the financial capital of the world,

the Constitution's mandate of bankruptcy law uniformity would

be substantially dishonored.

Perhaps the best way to encourage violation of a law is to

publicly announce that the law, and in fact

the Constitution

will not be enforced. Astonishingly, that is precisely what the

Second Circuit has done here.

The district court invoked the

Rooker-Feldman doctrine to effectively hamstring itself, and the

Second Circuit approved.

This Court has always considered the resolution of a split

among the circuits to be one of its highest priorities. When

the outlier circuit has taken a position which is not merely

an errant interpretation of a statute, but has done so with the

result being a violation of a Constitutional mandate of uniformity

among the states

[circuits], then the priority and urgency of

rectification is even higher than a quotidian circuit split.

Given the well-known creativity and aggressiveness of creditors'

and collection attorneys, it would not be an overstatement to say

that time is of the essence.

( 18 )

5. The same Rooker-Feldman rationale as condoned by the

Second Circuit, if unchecked, will have harmful spill­

over effects on the enforcement and uniform application

of other Bankruptcy Code provisions, and of federal law

generally.

Here, the Second Circuit has given its stamp of approval to

the district court's reasoning and conclusion that the RookerFeldman doctrine deprives it and the bankruptcy court of juris­

diction to remedy state court violations of the Automatic Stay.

If one views the Automatic Stay as a temporary restraining

order or injunction, the discharge order is analogous to a per­

manent injunction against attempts to collect a debt. Applying

the identical Rooker-Feldman "test" at issue here, renders bank­

ruptcy and lower federal courts equally impotent to rectify

violations of a discharge order. Under such a scenario, creditors

would have little or no disincentive to violate discharge orders.

In these times of frequent sale and other transfer of debt,

and the sale of delinquent receivables at a discount to thirdparty collection entities, the assignees thereof would lack moti­

vation to be diligent in ascertaining if acquired debt from the

confines of the Second Circuit had been discharged.

The Second Circuit Court of Appeals has now invited the

toppling of the two bookends of bankruptcy case administration —

the Automatic Stay and the discharge of debt. Other long-standing

proper exercise of lower court federal question jurisdiction

will, if no corrective measures are taken, likely join in the

cascade.

( 19 )

Each of the five distinct reasons presented herein, even

standing alone, meets the high bar this Court sets for eligibility

for its intervention. Taken together however, the intercircuit

conflict, the radical departure from abiding jurisprudence, the

disregard of Constitutional mandate and of this Court's guidance,

coupled with the likely derivative harm to the federal judiciary,

the confidence therein, and to the public, ranks this case excep­

tionally warranting of this Court's attention.

This case furthermore offers this Court an ideal opportunity

to issue an emphatic admonition to the lower courts with respect

to abdication of proper federal jurisdiction. By doing so, this

Court may, albeit belatedly through no fault of its own, fulfill

Justice Stevens' aspiration

for an enduring end to thus far

perennial Rooker-Feldman-induced error.

CONCLUSION

The writ of certiorari should be granted.

1

Respectfully submitted,

Dated: January 8, 2020

Philip G. Barry/t

Petitioner pro se

Philip Barry #77573-053

F.C.I. P.0. Box 2000

Joint Base MDL, NJ 08640

1. Although not directly the subject of this Petition, this Court

may wish to consider exercise of its supervisory authority in

response to two disturbing aspects of the lower courts orders.

The district court stated that, "any appeal would not be taken

in good faith," which is tantamount to a finding of frivolous­

ness, and attempted to block appellate review of its own deci­

sion by denying forma pauperis status for purpose of an appeal.

Similarly, the 2nd Circuit stated that the issue wasn't "arguable."

( 20 )

CERTIFICATE OF SERVICE

I, the undersigned Philip Barry, hereby affirm under penalty

of perjury that a true copy of the Petition for Writ of Certiorari

submitted herewith was addressed to Jared Rich Esq • > attorney for

the respondents, 44 Court Street, Suite 917, Brooklyn, NY 11201,

and deposited in the outgoing inmate legal mail at Fort Dix, New

Jersey on January 14, 2020 with sufficient First Class Postage

affixed thereto.

Dated: January 14, 2020

Philip^Barry

CERTIFICATE OF MAILING

__

I, the undersigned Philip Barry, Petitioner, hereby affirm

under penalty of perjury that the Petition for Writ of Certiorari

submitted herewith, along with supporting documents, were deposited

in the outgping legal mail system at Fort Dix, New Jersey on

January 14, 2020 with sufficient First Class Postage affixed

thereto.

Dated January 14, 2020

/

Philip^Barry

A

Petitioner pro(se