Reply Brief — Things Remembered, Inc. v. Petrarca

Supreme Court, U.S.

FILED

Aug 26 1995

No. 94-1530

CLERK

endesnsnenes

Au the Supreme Qonrt of the Huited States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,

Petitioner,

V.

ANTHONY A. PETRARCA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

STEVEN D. CUNDRA,

Counsel of Record

PATRICIA L. TAYLOR

DEAN D. GAMIN

MARK A. GAMIN

THOMPSON, HINE AND FLORY

i920 N. Street, N.W.

Washington, D.C. 20036

(202) 973-2700

Counsel for Petitioner

BEST AVAILABLE COPY

SS

> a

(i)

QUESTION PRESENTED FOR REVIEW

Whether an order remanding a case on other than "any

equitable ground," which case had been removed pursuant

to 28 U.S.C. § 1452, is reviewable by the court of appeals.

(iii)

(ii)

TABLE OF CONTENTS B. The Bankruptcy Removal Scheme

Contemplates and Permits Appeal of the

EE EO 8

Page C. General Statements of Bankruptcy Policy

and History Prove Nothing in the Face of

QUESTION PRESENTED FOR REVIEW ....... i the Inconsistencies and Incongruities

Between § 1447 and § 1452 ....... 12

TABLE OF CONTENTS ..0cctcceeewun eee ii

Ill. THINGS REMEMBERED

TABLE OF AUTHIORITIS . wc ccc tc uctuns iv WAIVED NOTHING ............. 15

ARGUDMENT ......s0000 ck sae 2 A. Timeliness of the Bankruptcy Removal

(1) is Not the Issue Before this Court

I. APPELLATE REVIEW OF THE and (2) Was Not Waived ......... 15

REMAND ORDER IS NOT BARRED

BY 6 1468... oss cee 2 B. Neither the Question Before this Court

Nor the Other Question Cited by

A. The Remand Was Not Entered EE 16

"On Any Equitable Ground" ........ 2

EIS Ea 17

B. “Any Equitable Ground” Does Not

Encompass “Any Ground” of Remand . . 3 APPENDIX:

ll. APPELLATE REVIEW OF THE U.S. Const. art. I IS tates may os A-14

REMAND ORDER IS NOT BARRED

BY §$ 8660 .. wi vcdvekeneneeees 5

A. The Remand Order Was Not Issued

Pursuant te © S667 «cts eheouee ee 6

(iv)

TABLE OF AUTHORITIES

Page

Cases:

In re Adams, 809 F.2d 1187 (Sth Cir. 1987). ... 7,8

In re Adams, 133 B.R. 191 (Bankr. W.D. Mich.

ah es eR ee ah ow eae 8

In re Allstate Ins. Co. 8 F.3d 219

CE ee ed oe Wie aly 6 bo 8 eo 10

Balazik v. County of Dauphin, 44 F.3d 209

Se Gee A eG il hen oe dias & 0 0 2 0 2 )

In re Branded Prods., Inc., 154 B.R. 936

Gs. Wa Se EY Ne we ws cee 6, 8

Carnegie-Mellon Univ. v. Cohill_—

ee es vn ed vee 68 boo oe 6

Connecticut Nat’l Bank v. Germain,

ne as oe as 8 13

Matter of Continental Casualty Co., 29 F.3d

ey I, oo ie nia Ge eye wg 10

Dominick v. Dixie Natural Life Ins. Co. , 809 F.2d

ee Be a da es Kb ee ee 8

Federal Election Comm'n v. NRA Political

Victory Fund, 115 S. Ct. 537 (1994) ........ 14

(v)

In re Hansen Industrial, Inc., 83 B.R. C59

BR ee eee 8

Hernandez v. Brakegate, Ltd., 942 F.2d 1223

Ge Ed ho. OF 0 eHb ws ae ews 6, 9, 12

Pacor, Inc. v. Higgins, 743 F.2d 984

Sees SE ah ta bi dace SUR ee: «we a0 9, 12

Posadas v. National City Bank, 296 U.S. 497

SEN i as Sk gh oe a eke dk COMES 6 ore a aiks 14

In re Potts, 724 F.2d 47 (6th Cir. 1984) ........ 8

Sykes v. Texas Air Corp., 834 F.2d 488

te eee nee es eo 6 0. 7,9

Thermtron Prods., Inc. v. Hermansdorfer,

I I ro ar ly wos ecg 6 eo 0 6 8 11

United States v. American Ry. Express Co.,

I 16

Statutes:

EE en ee ee 7

ss os ay oho wb abs ‘12

A ae a e's ee bed bs 46 6 passim

in ea ea passim

(vi)

Constitutions:

OR Cee OR CORES ccc ce h ev ecevets 5

Legislative Sources:

H.R. Doc. No. 889, 100th Cong., 2d Sess. 7

(1988), reprinted in 1988 U.S.C.C.A.N. 5982,

ee es re ae ee Os Bib e008 ke 8 88 e's 10

Miscellaneous Sources:

Black’s Law Dictionary (Sth Ed. 1979) ......... 2

Webster’s Third New International Dictionary (1976) . 2

No. 94-1530

In the Supreme Qonrt of the United States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,

Petitioner,

v.

ANTHONY A. PETRARCA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Petitioner Things Remembered, Inc.' ("Things

Remembered") submits that nothing in either the Brief for

Respondent or the Brief for Amicus defeats the arguments set

forth in Things Remembered’s main brief. Why that is so,

and why this Court should reverse the Sixth Circuit’s order

dismissing Things Remembered’s appeal, is discussed in

detail here in Thin-: Remembered’s Reply Brief, which

proceeds generally in the same order of argument as its first

brief.

' Pursuant to Supreme Court Rule 29.1, Things Remembered re-

spectfully refers the Court to the statement at Brief for Petitioner at 3

n.1.

ARGUMENT

APPELLATE REVIEW OF THE REMAND

ORDER IS NOT BARRED BY § 1452

Initially, Petrarca argues that Things Remembered

has not defined "any equitable ground" and that "any

equitable ground" includes "jurisdiction." The first point is

correct, the second not: whatever the grounds were for the

remand, they were not "equitable." Thus, the plain

language of 28 U.S.C. § 1452(b) should be given effect to

allow appellate review of the District Court’s order.

A. The Remand Was Not Entered

“On Any Equitable Ground”

Things Remembered need not catalogue every

conceivable equitable’ ground the District Court might have

considered to show that its holding -- that event X followed

deadline Y -- was decidedly not premised "on any equitable

ground" within § 1452(b). The Bankruptcy Court and

District Court Orders addressed only whether Things

? If definition of “equitable” is needed, Things Remembered would

suggest, and accept, any of these: “Just; conformable to the principles

of justice and right. Existing in equity; available or sustainable in equity,

or upon the rules and principles of equity." Black's Law Dictionary,

482 (Sth ed. 1979); “characterized by equity: fair to all concerned:

without prejudice, favor, or rigor entailing undue hardship. 2. that can

be sustained or made effective in a court of equity or upon principles of

equity jurisprudence: existing or valid in equity as distinguished from

law. Syn see fair." Webster's Third New International Dictionary, 769

(1976).

3

Remembered’s removals were timely, and explicitly

declined to address motions and arguments raising other

issues, (J.A. 9a, 31a). The District Court’s analysis merely

computed (from an erroneous starting point, Things

Remembered would have argued, and hopes to argue, in the

Sixth Circuit) the time for removal. This was in the nature

of an arithmetical calculation.

It was not, in contrast, a discretionary judgment call

that required weighing the relative merits of various

considerations that might or might not favor remand. Those

kinds of judgment calls do not permit a black-or-white, yes-

or-no holding, but rather a wise and informed, vel non,

decision, not susceptible to easy, or proper, review in a

higher court. Timeliness, on the other hand, is quantifiable

and rigid. Decisions on timeliness grounds are demonstrably

right or wrong, and so can be and are reviewed de novo.

This is precisely the distinction that Congress has

galvanized, in 28 U.S.C. § 1452(b), by prohibiting review

of remands on equitable grounds, but not others.

B. “Any Equitable Ground” Does Not Encompass

“Any Ground” of Remand

Petrarca’s argument for inclusion of "jurisdiction" in

"any equitable ground" proceeds without logical support.

Thus, even if it is correct to say that Congress intended

generally that state law claims be tried in state court, even

if Congressional debates "repeatedly cited to the concepts of

equity and fairness," Brief for Respondent at 17, and even

if statements by individual Senators can appropriately guide

this Court’s reading of the statute,’ id. at 17-18, the bald

> It may be that Petrarca’s free and easy paraphrases of the legislative

(continued...)

4

conclusion that Petrarca draws -- that "Congress clarified its

intent to include ‘jurisdiction’ as an ‘equitable ground,’" id.

at 18, just does not follow. At most, Petrarca’s entire

argument here is a simple assertion that Congress ought to

have prohibited appeals of remands made on "jurisdictional"

grounds in § 1452(b). But it did not, and the omission must

have meant something; in any event it should not be

judicially supplied.

Finally, Petrarca uses this section of his brief to

lambaste Things Remembered for "litigat[ing] the juris-

dictional question in order to delay the suit and increase liti-

gation expenses," and other alleged misdeeds. Brief for

Respondent at 17-18. (Though structured less as a direct at-

tack on Things Remembered, Amicus makes a similar point

-- that litigating over where to litigate is wasteful. Indeed,

that is the whole point of the Amicus brief.*)

The criticism is not justified or fair. The right to

invoke federal bankruptcy jurisdiction proceeds from the

*(.. continued)

history materials he cites, Brief for Respondent at 14-20, are accurate,

but the statements are so general as to be all but meaningless here. One

need not dispute, for example, that the “abuse of bankruptcy power,” id.

at 17, is a legitimate Congressional concern, in order to argue that the

words of the statute here at issue should be applied.

‘ Part of the basis for the Amicus argument is the incorrect assertion

that the Child World bankruptcy case “is now long since over." Amicus

Brief at 6. It is not; that a plan was confirmed, id. n.17, does not end

the bankruptcy case. In fact, the Child World Bankruptcy Court has

expiicitly retained jurisdiction over claims, including Petrarca’s here,

“initiated in or removed to the Bankruptcy Court involving real property

leases rejected by Child World . . ." See Exhibit B to Brief for Appellee

Things Remembered, Inc. (filed Aug. 31, 1993 in Case No. 5:93-CV-

1582) at 7.

5

Constitution’s recognition of bankruptcy as a unique federal

concern, U.S. Const. art. I § 8 cl. 4, one in which all

matters affecting the estate may be adjudicated in a single

forum. The fact that Petrarca’s claims may affect or be

affected by the estate of a bankrupt under federal court

protection is not the doing of Things Remembered; the fact

that Congress allows those claims to be addressed in a

single, fair, credible and efficient bankruptcy court forum

is a policy choice Congress, not Things Remembered, has

made.

Petrarca’s criticism, moreover, has a little of the pot

calling the kettle black about it. Had the lower Bankruptcy

Court’s order of transfer been given effect, this case might

likely have been concluded by now. It was not given effect;

Petrarca chose to appeal the bankruptcy court’s order of

transfer in the face of ample precedent supporting it. That

appeal, too, was litigation over where to litigate, and Things

Remembered’s good faith in removing was surely no less

than Petrarca’s in appealing.

APPELLATE REVIEW OF THE REMAND

ORDER IS NOT BARRED BY § 1447(d)

Section 1452 does not bar appeal of remands of

bankruptcy removals based on timeliness grounds -- that is

Clear. Neither does § 1447(d).

6

A. The Remand Order Was Not

Issued Pursuant to § 1447

Faced with the plain language of § 1452(b), Petrarca

next advances the argument that "since this case was

remanded on jurisdictional grounds, it could not have been

remanded pursuant to § 1452(b)." Brief for Respondent at

20. Even were that true (which Things Remembered does

not concede*) it does not follow that the remand must

therefore have been made pursuant to 28 U.S.C. § 1447(d)

and hence is subject to the appellate bar of that subsection.

Petrarca’s argument in this regard is founded in

Hernandez v. Brakegate, Lid., 942 F.2d 1223 (7th Cir.

1991). Hernandez erroneously presumed that federal courts

have no power to remand cases unless such power is

granted by statute, and that if statutory authorization for

remand is lacking, a case must be dismissed outright. 942

F.2d at 1225. But this Court has held that remands can be

made, validly and effectively, without explicit statutory

authority. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 341

(1988). See Brief for Petitioner at 28. Here it is irrelevant

whether there exists applicable statutory authorization to

remand. Rather, the relevant point is that where there

exists no applicable statutory bar to appeal, appeal is

permitted.

* One of Petrarca’s own citations, In re Branded Products, Inc., 154

B.R. 936, 945 (Bankr. W.D. Tex. 1993), Brief for Respondent at 29,

suggests that the power to remand on a ground which is not “any

equitable ground” derives from § 1452(@). That observation, if anything,

supports Things Remembered’s argument that the appellate bar of

§ 1452(b) applies solely to remands “entered under this subsection,” i.e.,

those entered “on any equitable ground."

7

The significance of the foregoing is that the

Hernandez court’s characterization of the two Statutory bars

to appeal as “cover[ing] the waterfront," or Respondent’s

presentation of the issue as a dichotomy from which there

IS NO escape, are wrong. The remand at issue in this case

could be legally correct, whether or not authorized by either

of § 1452 or § 1447, but subject to the appellate bar of

neither. In that event, Things Remembered is entitled to an

appellate court decision as to the legal correctness of the

remand.°

Finally, Petrarca catalogs a number of cases which

he contends are supportive of the application of some bar to

appeal to the remand order issued in this case. Brief for

Respondent at 25-31. Though a lower court scorecard is

less than pertinent here, Things Remembered will briefly

address those new cases Petrarca cites, all of which are

distinguishable, that were not discussed in the Brief for

Petitioner.

In re Adams, 809 F.2d 1187 (5th Cir. 1987)

dismissed an appeal of an order of remand by virtue of both

28 U.S.C. §§ 1334(c)(2) and 1452(b). The ruling as to the

former statute was correct because it does not carve out an

exception for other-than-equitable remands. As to

§ 1452(b), Adams ignored the distinction between remands

on equitable grounds and other remands.’

- Petrarca also relies on Sykes v. Texas Air Corp., 834 F.2d 488 (Sth

Cir. 1987) and the notion that appellate review of remand orders might

jeopardize state court proceedings. Brief for Respondent at 21. If that

is plausible elsewhere, it has no bearing here, where there was little

activity in the state court before the removal and none after.

” Petrarca’s puzzling parenthetical, Brief for Respondent at 27,

(continued...)

Dominick v. Dixie National Life Insurance Co., 809

F.2d 1559 (11th Cir. 1987) and In re Potts, 724 F.2d 47

(6th Cir. 1984), involved reviewability of decisions to

retain, not remand, removed cases. Those cases are readily

explained by reference to the plain language of § 1452 (or

its predecessor § 1478): "[a]n order under this subsection

remanding a claim or cause of action, or a decision to not

remand, is not reviewable by appeal . . ." (emphasis

added). In re Branded Products, Inc., 154 B.R. 936

(Bankr., W.D. Tex. 1993); and Jn re Hansen Industries,

Inc., 83 B.R. 659 (Bankr. D. Minn. 1988) are both

bankruptcy court decisions which cannot be authoritative on

this question of appealability.

Where a removed case could be heard in the

bankruptcy court, but the bankruptcy court erroneously

remands because it believes it does not have jurisdiction, or

that the removal was untimely, or for any reason other than

"any equitable" one, appellate review of that order is

permitted because the language of § 1452 does not prohibit

it.

B. The Bankruptcy Removal Scheme

Contemplates and Permits Appeal of

the Remand Order

Petrarca (and the Amicus) contend that appeal of any

remand based on "jurisdictional" grounds is barred by

7(...continued)

describes Adams as “the further history of the case which Petitioner

cites” at Brief for Petitioner at 20 n.13. In re Adams, 809 F.2d 1187

(Sth Cir. 1987) and In re Adams, 133 B.R. 191 (Bankr. W.D. Mich.

1991) share the same name but are not the same case and have little or

nothing to do with each other substantively.

J

9

§ 1447(d). The short answer to this contention is that this —

remand was not on jurisdictional grounds,* and the

argument is therefore based on an inaccurate premise. This

remand was instead ordered because of a perceived defect

in timeliness of the removal.

It is true that § 1447(d) could bar appeal, in the

general removal context, of remands based on procedural

defects as well as those based on lack of jurisdiction. See,

e.g., Balazik v. County of Dauphin, 44 F.3d 209 (3rd Cir.

1995). But it does not and cannot follow that appeal of an

remand order grounded on a perceived defect in timeliness

of a removal taken in the bankruptcy context is also barred

by § 1447(d). The conclusion is evident from an analysis

of the differing rules by which a removed party may seek

remand; that analysis shows that Petrarca’s suggestion

would impose on the removing party the bar to appeal of

§ 1447(d), while releasing the removed party from the

deadline of § 1447(c). That asymmetrical strategic

advantage cou'd not have been intended, and was not

enacted, by Congress.

Under § 1447(c), "a motion to remand the case on

the basis of any defect in removal procedure must be made

within 30 days following the notice of removal under

* The District Court held that the Bankruptcy Court “lacked

jurisdiction,” but it could not have meant subject-matter jurisdiction

because failure to timely remove does not divest the court of jurisdiction.

This case differs in that respect from three of the precedents on this

issue, Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984); Hernandez

v. Brakegate, Lid., 942 F.2d 1223 (7th Cir. 1991); and Sykes v. Texas

Air Corp., 834 F.2d 488 (Sth Cir. 1987), all of which considered

remands made for lack of subject-matter jurisdiction.

10

section 1446(a)."° Absent such a motion, the removed party

is deemed to waive any objection to procedural defects and

the case (if there is subject matter jurisdiction) will proceed

to judgment. At that point, any procedural defect in

removal will never be at issue; the District Court may not

raise the defect sua sponte. See Matter of Continental

Casualty Co., 29 F.3d 292 (7th Cir. 1994); In re Allstate

Ins. Co., 8 F.3d 219 (Sth Cir. 1993).

By contrast, a perceived defect in removal procedure

is never deemed waived in a bankruptcy-context removal,

for Rule 9027 does not impose any time limit on a motion

to remand.'° The Amicus acknowledges this difference, see

Amicus Brief at 20, but overlooks its significance.

That significance lies in the fact that the removed

party in a bankruptcy-context removal acquires a right to

identify, and move on, a procedural defect at any time,

notwithstanding the deadline of § 1447(c). If for whatever

reason things appear to be going badly in federal court at

some later time, the removed party could then present its

procedural objections. At the same time (under Petrarca’s

* This language was added to § 1447(c) by Section 1016 of the Judicial

Improvements and Access to Justice Act of 1988, Pub.L. 100-702, 102

Stat. 4642. The intent of the amendment was to deal with the “risk that

a party who is aware of a defect in removal procedure may hold the

defect in reserve as a means of forum shopping if the litigation should

take an unfavorable tum.” H.R. Doc. No. 889, 100th Cong., 2d Sess. 7

(1988), 1988 U.S.C.C.A.N. 5982, 6033.

‘© It would not appear that Rule 9027(d) imports the time limitation of

§ 1447(c), for § 1447(c), by its explicit terms, measures the motion

deadline from “the filing of the notice of removal under Section

§ 1446(a).” That section contains procedures and time limitations which

vary in some respects from the notice of removal described in Rule

9027(a). See infra this Reply Brief at n.12.

11

theory) the removing party would always remain subject to

the bar to appeal of § 1447(d), even though the removed

party stands outside that statute.

The solution to that skewed and illogical procedural

advantage can only be the interpretation of § 1452 and

Rule 9027 for which Things Remembered contends: that

these provisions set up an exclusive, separate and

comprehensive scheme for bankruptcy context removals.

Under Rule 9027, the removed party has the right at any

time and forever to identify a procedural defect in removal,

and, in order to to guard against abuse, the removing party

has been afforded a continuing, corresponding right to

appeal the decision. Under the scheme of § 1447(c) and

(d), the removed party must act quickly in choosing a state

or federal forum, and as a corresponding limitation, the

removing party may not appeal."

Since all of the necessary removal procedures are

contained, in a fair and evenhanded manner, in § 1452 and

Rule 9027, there is no need for importation of § 1447. This

is especially so since to allow § 1447 to be applied

asymmetrically to bankruptcy-context removals to the

benefit of one party and not the other cannot have been

intended and has the potential of working substantial

mischief.

'' In general-context removals, this protective balance is assured by the

doctrine of Thermtron Products, Inc. V. Hermansdorfer, 423 U.S. 336

(1976). If an untimely motion to remand on procedural defects is

erroneously granted by the court, that remand would be “issued on

grounds not authorized by § 1447(d),” id. at 343, and hence would be

reviewable.

12

C. General Statements of Bankruptcy Policy

and History Prove Nothing in the Face

of the Inconsistencies and Incongruities

Between § 1447 and § 1452

In 1978, Congress enacted 28 U.S.C. § 1478, the

predecessor to § 1452. That enactment, and the

accompanying procedural rules, produced (and evidenced

the intent to produce) a self-contained bankruptcy-context

removal scheme that is separate and apart from the general

removal scheme of §§ 1441-1447. The Amicus contends

that the history of removal and remand law and procedure

should guide this Court insofar as it reflects "the larger

context of the policies that animate bankruptcy

administration as a whole," Amicus Brief at 27-28. That

argument ultimately proves nothing related to the question

now before this Court. Sections IA and IB of the Amicus

Brief canvass cases which predate the enactment of § 1478

(the predecessor to § 1452) with the apparent purpose of

showing that before the removal and remand provisions of

§ 1478 came into existence, the existing removal and

remand provisions of §§ 1441-1447 (and predecessors) were

applied in bankruptcy related actions. This proves that

§ 1478 was not applied before it was enacted. After that

extended discussion, the Amicus cites Hernandez and Pacor,

two of the current cases which describe the split between

the Circuits, and arrives at the issue that is relevant here:

“whether application of Section 1447(d) in the bankruptcy

context under the current Bankruptcy Code is improper

given the existence of 28 U.S.C. § 1452(b).” Amicus Brief

at 17.

Section IC of the Amicus’ Brief then states the

argument that § 1447 and § 1452, which "govern different

specie of remands," are not in conflict. Amicus Brief at

13

19. As support for this conclusion, the Amicus discounts

the analysis of Pacor v. Higgins, 743 F.2d 964 (3rd Cir.

1984), which identified a number of inconsistencies and

incongruities that would result from the simultaneous

application of both statutes. Things Remembered provided

an extended example of those inconsistencies and

incongruities, see Brief for Petitioner at 20-21. The

hypothetical demonstrated that there are removals subject to

§ 1452 which simply cannot bear the language or concepts

of § 1447. Amicus has said nothing to reconcile the statues

to the situation there posited. If the Amicus cannot provide

an answer to that problem, it is worth nothing to say, as the

Amicus does, that the differences just don’t matter. '”

But matter they do, and they matter in a way that

supports a finding that § 1447 is not to be applied to

remands in the bankruptcy context. Amicus contends,

Amicus Brief at 21, that Connecticut National Bank v.

Germain, 503 U.S. 249 (1992), is instructive as to the

interpretation of two statutes with overlapping application.

It is -- but not to the effect Amicus urges. Germain

preserved the effect of two overlapping statutes, because

one reached additional situations the other did not.

However, the enactment of the separate and comprehensive

bankruptcy removal scheme now codified at § 1452

indicates Congress’ intent to make that scheme exclusively

operative within its separate and comprehensive domain.

'2 The Amicus actually acknowledges only one difference between the

two removal schemes: the time limits for removal in a bankruptcy and

in a general removal context. That difference is said to be “a narrow

one” unrelated to the statutes governing each separate and comprehensive

scheme. Amicus Brief at 20. None of the other differences identified by

Pacor and Things Remembered (the fora from which cases can be

removed, the parties entitled to remove, and the extent of claims, causes

of action, or an entire case that can be removed) are addressed.

ae

14

This case is therefore more closely akin to Federal Election

Commission v. NRA Political Victory Fund, 115 S.Ct. 537

(1994), see Brief for Petitioner at 23, than to Germain. The

statutes considered in NRA Fund, a case that Amicus does

not confront, were addressed to separate matters concerning

a single subject -- the agency’s authority to litigate.

Analogous to the NRA Fund statutes (one concerning

authority to appeal, and one concerning authority to petition

for certiorari), one statute at issue here concerns general

removals, and one statute concerns bankruptcy-specific

removals. The latter governs to the exclusion of the

former.

Indeed, the Amicus acknowledges that “if the later

act covers the whole subject of the earlier one and is clearly

intended as a substitute, it will operate . . . as a repeal of

the earlier act.” Posadas v. National City Bank, 296 U.S.

497, 503 (1936) quoted in Brief of Amicus at 25. Hence,

even if this case necessarily must be viewed as one

demanding an “implied repeal” of § 1447(d) in the

bankruptcy removal context, § 1452 meets this test. All of

the means and procedures for removal in the bankruptcy

context are self-contained within § 1452 and Rule 9027, and

reference to any other statute is unnecessary. Had Congress

intended to foreclose appeal of any bankruptcy context

remand order, § 1452 would have been worded, more

simply, to make that bar explicit. The fact that § 1452 does

not say “any order of remand is not reviewable”

persuasively shows that that § 1447-type concept was not to

be imported.

15

Il.

THINGS REMEMBERED WAIVED NOTHING

Lastly, Petrarca makes two waiver-type arguments:

first, that Things Remembered failed to appeal the

Bankruptcy Court’s holding that the bankruptcy removal

was untimely and so "forfeited its right to appeal that

question here," Brief for Respondent at 38-39; and second,

that the question before the Court is moot as a result of

state court actions in Colorado and Pennsylvania. Neither

holds water.

A. Timeliness of the Bankruptcy Removal

(1) is Not the Issue Before This Court

and (2) Was Not Waived.

The Bankruptcy Court’s ruling on timeliness of the

bankruptcy removal is not before this Court; that argument

will be appropriate, if at all, in the Sixth Circuit if this

Court reverses. It makes no sense to say that Things

Remembered failed to "preserve its right to make this

appeal" when this "appeal" addresses the entirely different

question of whether the Sixth Circuit can review the District

Court’s order.

In any event, Petrarca’s analysis is incorrect. Things

Remembered did not appeal the Bankruptcy Court’s decision

because it won. The Bankruptcy Court ordered precisely

the relief that Things Remembered had asked of it: that the

case be transferred to the Child World "home" bankruptcy

court for determination of the motion to remand and all

other issues. Things Remembered did argue to the District

Court for affirmance of the Bankruptcy Court’s order on

two grounds: that the Bankruptcy Court ruling that the

16

general removal was timely was correct and, that the

bankruptcy removal was untimely, incorrect. See Brief for

Appellee (filed Aug. 31, 1993 in Case No. 5:93-CV-1582)

at 5n.4. As Things Remembered there stated, affirmance

can be ordered on any ground, even one not relied on by

the lower court. E.g., United States v. American Ry.

Express Co., 265 U.S. 425, 435 (1924). Finally, the

District Court considered the timeliness of the bankruptcy

removal at length, and opined that the Bankruptcy Court

had been correct in its ruling on that ground. (J.A. 27a-

31a). In short, the issue was fully before the District Court,

is not at all before this Court and so, here, is of no

moment.

B. Neither the Question Before This Court

Nor the Other Question Cited By

Petrarca Is Moot

There are a number of problems with Petrarca’s

mootness argument based on other pending state court

cases, the foremost being that the record in this Court is

devoid of evidence of the basis for it. Because this Court

has neither the pleadings, briefs, orders, nor any other

papers from the state court cases before it, it has no way to

determine conclusively what, Things Remembered submits,

is certainly true: that Petrarca assigned to others his entire

interest in two of the properties, as to which he is no longer

a real party in interest, at issue here (without ever

dismissing his claims on those properties in this lawsuit);

that Colorado and Pennsylvania were the only fora in which

all proper parties, including Petrarca’s assignees, were

amenable to service of process; that the state court actions

involve questions exclusively of state law (involving the

construction of guaranties) and are declaratory judgment

actions only and do not involve the determination of money

17

obligations of Child World; thus that those cases can be

adjudicated without reference to this case, the Child World

bankruptcy, or any question of federal law; that, in any

event, the state court cases involve only two of the seven

properties at issue in this case; and that for all these reasons

the state court actions do not "moot" anything at issue here.

CONCLUSION

Neither Petrarca’s brief nor that of the Amicus

demonstrate that Congress forbade review by the court of

appeals of orders like this one. Rather, the plain language

of the statutes, the analysis of the different removal

schemes, the case law on point, and the revelant policies

behind consolidation of bankruptcy-related litigation,

support the conclusion that Things Remembered has such a

right of appeal.

Accordingly, Petitioner Things Remembered, Inc.

respectfully requests that this Court reverse the Sixth

Circuit’s order dismissing this appeal, and remand this case

to that court for consideration of the merits.

Respectfully submitted,

STEVEN D. CUNDRA,

Counsel of Record

PATRICIA L. TAYLOR

DEAN D. GAMIN

MARK A. GAMIN

THOMPSON, HINE AND FLORY

1920 N. Street, N.W.

Washington, D.C. 20036

(202) 973-2700

Counsel for Petitioner

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THE CONSTITUTION

OF THE UNITED STATES OF AMERICA

ARTICLE I, SECTION 8:

| The Congress shall have Power To Lay and collect

: Taxes, Duties, Imposts and Excises, to pay the Debts and

provide for the commor Defence and general Welfare of the

United States; but all Duties, Imposts and Excises shall be

uniform throughout the United States;

** *

) To establish an uniform Rule of Naturalization, and

| uniform Laws on the subject of Bankruptcies throughout the

United States;