Amicus Curiae Brief — Things Remembered, Inc. v. Petrarca

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

gh FILES (o)

JUL 1 QR No. 94-1530

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC..,

Petitioner,

vs.

ANTHONY A. PETRARCA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

MOTION OF THE CONNECTICUT BAR

ASSOCIATION, COMMERCIAL LAW AND

BANKRUPTCY SECTION, TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF THE

CONNECTICUT BAR ASSOCIATION,

COMMERCIAL LAW AND BANKRUPTCY

SECTION, IN SUPPORT OF RESPONDENT

G. ERIC BRUNSTAD, JR.*+

PETER C.L. ROTH

PATRICIA A. SHACKELFORD

HEBB & GITLIN

One State Street

Hartford, Connecticut 06103

(203) 240-2700

Attorneys for Amicus Curiae

* Counsel of Record

+ Visiting Lecturer of Law, Yale Law School, New Haven,

Connecticut

[ BEST AVAILABLE COPY)

To RES NE NTIS EI ORS

No. 94-1530

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,

Petitioner,

vs.

ANTHONY A. PETRARCA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION OF THE CONNECTICUT BAR

ASSOCIATION, COMMERCIAL LAW AND

BANKRUPTCY SECTION, TO FILE BRIEF

AMICUS CURIAE

Pursuant to Rule 37.4 of the Rules of this Court, amicus the

Connecticut Bar Association, Commercial Law and Bank-

ruptcy Section (“CLBS”) hereby moves for leave to file the

attached brief amicus curiae. Respondents have granted but

' The participation of CLBS as amicus curiae in this case has been ap-

proved by the Connecticut Bar Association.

Petitioner has refused consent for CLBS to file its brief ami-

cus curiae in this case.

As set forth in its bylaws, CLBS was organized to promote

the objects of the Connecticut Bar Association (’CBA")

within the field of commercial law and bankruptcy. As set

forth in relevant part in the constitution of the CBA:

The objects of this Association shall be to advance the

science of jurisprudence; to promote the administration

of justice; [and] . . . to promote the leadership of the

Bar in matters of public importance in the State and

the Nation... .*

CLBS seeks leave to file the attached brief amicus curiae

in support of its position that the administration of justice

generally, and the administration of bankruptcy in particular,

are impaired by the wasteful consequences of protracted liti-

gation over where to litigate. CLBS contends that the decision

of the Court of Appeals in this case furthers the goal of cur-

tailing this type of wasteful litigation consistent with Con-

gressional policy as expressed in the relevant statutes, and

therefore CLBS supports affirmance of the decision of the

court below. Consistent with Rule 37.1 of the Rules of this

Court, CLBS seeks leave to file the attached brief to bring to

the attention of the Court critical matters omitted by the par-

ties.

CLBS contends that the Court of Appeals in this case cor-

rectly declined to review the order of the District Court re-

manding the underlying litigation back to the state tribunal in

which it arose. The Court of Appeals did so on the basis of 28

? CLBS files herewith the written consent of the Respondent to the sub-

mission of this brief.

> Bylaws of the Commercial Law and Bankruptcy Section of the Con-

necticut Bar Association, Art. I, § 2 (1984).

* The Constitution of the Connecticut Bar Association, Art. II, June 28,

1948.

—

U.S.C. §§ 1447(d) and 1452(b). Each of these statutory en-

actments contains a bar to review provision applicable to dif-

ferent kinds of remands: Section 1447(d) is applicable to

jurisdictional remands of all kinds, and Section 1452(b) is

applicable to “equitable” remands in bankruptcy cases. Peti-

tioner contends that neither provision applies in this case.

CLBS has reviewed both the Brief of Petitioner filed in this

case and the Brief of Respondent to be filed in this case. Nei-

ther Petitioner nor Respondent address in their submissions

several crucial issues vital to consideration of this matter.

First, neither party addresses the relevant histories of the

relevant statutes. Petitioner urges the Court to conclude that

Section 1447(d) has no application in the bankruptcy context.

However, the relevant historical background demonstrates

that this provision, and its statutory predecessors, have ap-

plied in bankruptcy for over a century.

Second, Petitioner’s argument rests on the presumption that

Section 1452(b) implicitly repeals Section 1447(d) in the

bankruptcy context. However, among other things, neither

party has briefed the relevant legislative histories behind the

two statutes to elucidate the existence (or lack thereof) of the

legislative intent necessary to effect such a repeal. CLBS

contends that reference to the legislative histories, coupled

with a lack of any true conflict between Sections 1447(d) and

1452(b) (as well as other considerations), demonstrate that

Congress did not intend the repeal of Section 1447(d) in the

bankruptcy context and that no such intent can be presumed.

Third, neither party has briefed the issue of the significance

of Sections 1447(d) and 1452(b) in the larger context of bank-

ruptcy administration as a whole, nor have the parties briefed

on a comparative basis the question of whether the decision of

the court below is consistent or at odds with Congress’ sys-

tematic effort across other analogous bankruptcy statutes to

curtail protracted litigation over where to litigate in the bank-

ruptcy appellate context. CLBS contends that the decision of

the court below is consistent with Congress’ larger effort in

this regard.

Because of these omissions, and because of CLBS’s inter-

est in the resolution of the case at bar, CLBS requests leave to

file the attached brief as amicus curiae.

* Counsel of Record

Lue Bassuitad, fp,

G. ERIC BRUNSTAD, JR.*+

PETER C.L. ROTH

PATRICIA A. SHACKELFORD

HEBB & GITLIN

One State Street

Hartford, Connecticut 06103

(203) 240-2700

Attorneys for Amicus Curiae

+ Visiting Lecturer of Law, Yale Law School, New Haven,

Connecticut

TABLE OF CONTENTS

I. SECTION 1447 AND ITS STATUTORY

PREDECESSORS HAVE LONG APPLIED

IN BANKRUPTCY AND THERE IS NO

BASIS TO CONCLUDE THAT SECTION

1447(d) DOES NOT APPLY IN THIS

FRIIS vstsivctirtaendinnnmnsensecinendiiinainmsansiuiiannbianiniianns

The History, Purpose, Language and

Policy of Section 1447(d) Clearly Pro-

scribe Review of Remand Orders such as

the Remand Order in this Case................

Section 1447 and Its Statutory Predeces-

sors Have Long Applied in Bankruptcy...

. Nothing in Section 1452 Prevents Appli-

cation of Section 1447(d) in this Case.....

Reference to the Relevant Legislative

History and Purpose of Section 1452(b)

Refutes Petitioner’s Position....................

The Relevant Rules of Statutory Con-

struction Refute Petitioner’s Contention

that Section 1447(d) Does Not Apply in

LE ORO Ee

II. Section 1447(d) Should Be Construed in the

Larger Context of the Policies and Purposes

of the Bankeruptcy Cod ..............cecsscccsseccseee

CONCLUSION

SEER EEE EEE EEE EEE EEE EEE EEE EEE HEHE EEE EEE EE EE

Page

TABLE OF AUTHORITIES

Cases

Amell v. United States, 384 U.S. 158 (1966).............

Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530

(6th Cir. 1970), cert. denied, 401 U.S. 939

Bardes v. First National Bank of Hawarden, 178

SR SE iaitiihissidasiniatciadpedthientiiaiiiannenbiiigesteneeses

Baxter Healthcare Corp. v. Hemex Liquidation

Trust, 132 B.R. 863 (N.D. III. 1991)... eee

Bowen v. Massachusetts, 487 U.S. 879 (1988)..........

Caminetti v. United States, 242 U.S. 470 (1917).......

Chandler v. O'Bryan, 445 F.2d 1045 (10th Cir.

iP Tia Minsriininnsenatisteeasihibanicinimieditiegredciniibveivaseramncensete

Connecticut National Bank v. Germain, 503 U.S.

| EEERRETIEE Katine Sates iornaessr none e oe Osea

Cook v. Griffin, 102 B.R. 875 (N.D. Ga. 1989).........

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

ET eo ea ny Fe nn OT

Demarest v. Manspeaker, 498 U.S. 184 (1991).........

Drexel Burnham Lambert Group, Inc. v. Vigilant

Ins. Co., 130 B.R. 405 (S.D.N.Y. 1991)..........000.

Employers Reinsurance Corp. v. Bryant, 299 U.S.

a iadassebnsdnintinaiaintitnneninnitatinetiiinineninceente

Ex parte Pennsylvania Co., 137 U.S. 451 (1890)......

Feibelman v. Packard, 109 U.S. 421 (1883).............

Georgia v. Pennsylvania R.R. Co., 324 U.S. 439,

reh'g denied, 324 U.S. 890 (1945) ........cecceeeeeees

Page

5, 21,

26, 27

12, 17

Gibson v. Bruce, 108 U.S. 561 (1883)...........ccccceeees

Gorse v. Long Neck, Ltd., 107 B.R. 479 (D. Del.

PPTs shisieinbiniestindbaiitidicnainsitadinedndipereiainnetedaisionen

Gravitt v. Southwestern Bell Telephone Co., 430

Se PUR Ie ti nciintntsennsicaniicntennibaniimanictianmensiewes

Griffen v. Oceanic Contractors, Inc., 458 U.S. 564

PUT cinsslitcepsloinihicniideiiaiciinpnientianiacionamnimimantuneiioinensns

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

Si ee ctsetecenieidiaicapaaclitisiinitasiaiiaaiivenbinnieabernennses

In re Axona Int'l Credit & Commerce, Ltd., 924

ek ee EEE: POTTED coccccsebiainnivenineniettanseceseaens

In re Branded Products, Inc., 154 B.R. 936 (Bankr.

a Sly I cctccteccnsicticteetevennieniannititiniaiipennssnte

In re Child World Inc., Case No. 92 B 20887 (JG)

GERRI. GRAB ee © oP ceccecscasssavessscesceneeensnssosnovessessenen

In re Clay, 35 F.3d 190 (Sth Cir. 1994) .........ccccceeeees

In re Eagle Bend Development, 61 B.R. 451 (Bankr.

Te CH CIE steciesttevininenschitnisiinpatsinseanenreneibinnnsennses

In re El Paso Pharm., Inc., 130 B.R. 492 (Bankr.

We es Ce iivciniertcittcnisedicennnctinanmmenn

In re Fay, 155 B.R. 1009 (Bankr. E.D. Mo. 1993)...

In re Gardner, 913 F.2d 1515 (10th Cir. 1990).........

In re Hall’s Motor Transit Co., 889 F.2d 520 (3d

Sse. Sara i eisctstictniceannchaielsiislaianipiiuahdliilacaeaigpildeidateniiioaationses

In re Interco Inc., 137 B.R. 993 (Bankr. E.D.Mo.

Dae sunsssnsssicsenesoasanneisiaiieiiesiunitinsidbatedeiiatinetioninsmumasianes

In re MacNeil Bros. Co., 259 F.2d 386 (1st Cir.

ea seiestcinncseiiialiianatiucicaiistiidbiaatiahieiasadiaiunitatiaiiinennien

In re Matthew Addy Steamship Commerce Corp.,

Se TT cicnicccdstenninpesennibenisenennenenmnes

In re Riverside Nursing Home, 144 B.R. 951

as I tctihesisartebciasteatrensinmeinnniinnsitienndancsse

In re Ross, 64 B.R. 829 (Bankr. S.D.N.Y. 1986).......

In re Stelweck, 86 B.R. 833 (Bankr. E.D.Pa. 1988)...

Intra Muros Trust v. Truck Stop Scale Co., 163 B.R.

NETS HITE cnintiichnsicitisdsiibadsitventasensesubdiecietes

Landreth Timber Co. v. Landreth, 471 U.S. 681

SEER re

Lone Star Indus., Inc. v. Liberty Mut. Ins., 131 B.R.

I aici aeaiiacniibaiidiibiiiciiiihiendonsece

Mallard v. United States District Court, 490 U.S.

RES EE TER Ne oot

Mobile Corp. v. Abeille General Ins. Co., 984 F.2d

I TI cst icerchseiierineraiinisnpistuniannntovens

Morey v. Lockhart, 123 U.S. 56 (1887) .............:c00000

Morton v. Mancari, 417 U.S. 535 (1974) .........ccc00008

National Labor Relations Board v. Bildisco &

Bildisco, 465 U.S. 513 (1984)............cccccccceceeeseees

Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. SO (1982).........cccccssoscscsssseecees

Pacor v. Higgins, 743 F.2d 984 (3d Cir. 1984).........

Peerless Weighting & Vending Mach. Corp. v.

Public Bldg. Comm. of Chicago, 209 F. Supp.

877 (N.D. Ill. 1962), app. dismissed, 371 U.S.

ee SUE Ninnntiindciasectiseninncsieienicsenesiondinstitnsscensecseceee

Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d

CRIES: NINE cciiindaiicnsttdinicinstinmesenonsinereneees

Page

9,10

5, 28

4, 6,

17,19

Page

Posadas v. National City Bank, 296 U.S. 497 (1936) . 25

Radzanower v. Touche Ross & Co., 426 U.S. 148

FPO A cctcsestnsintatinanstensiiiansininssiniibsipaninnianiiesiniiianies 25, 26

Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507

Se icscapsnscasnecctmsntestibinsinssilieniinissiibileiiiiatiiaiusaiinniénnibess 10

Red Rock v. Henry, 106 U.S. 596 (1883)..........c000000+ 25

River Cement Co. v. Bangert Bros. Constr. Co., 852

F.Supp. 25 (D. Calo. 1994)... ..ccccrcssrsesescscosesccossees 18

Rubin v. United States, 449 U.S. 424 (1981)............. 27

Scherer v. Carroll, 150 B.R. 549 (D. Vt. 1993)........ 19

Spencer v. Dup!an Silk Co., 191 U.S. 526 (1903) ..... 16

State of Georgia v. Rachel, 384 U.S. 780 (1966) ...... 10

Swofford v. Cornucopia Mines of Oregon, 140 F.

Jog 2 Be 8 fo: 17

Tenenbaum y. Walter E. Heller & Co., 308 F. Supp.

PE Ces Oo BP onervenicccsnshscnccnnenannesseinanenses 17

Thermtron Products, Inc. v. Hermansdorfer, 423

CE, Fa Cr ret cenccccsantctnsncciansninienstinimaninsmmneione Me A

10-14

TVA v. FRM, 437 U.S. 153 (1FTE)..ccccccccceescoserscssscsescce 26

United States v. Borden Co., 308 U.S. 188 (1939)..... 25, 26

United States v. Rice, 327 U.S. 742 (1946) ......:.0000+ 12,17

United States v. Ron Pair Enter., Inc., 489 U.S. 235

CRT vccnesesiicinininnsncisnintiansntuiiniitinsennsinatinrianenssininenteien 27

United States v. Rutherford, 442 U.S. 544 (1979)..... 27

United States v. Tynen, 78 U.S. (11 Wall.) 88

COO csecsccninssicivniunistenniasinannistaiasaneidiiadeadisaenie 25

irae oe... _

Vii

Whitman v. Chicago & N.W. Ry. Co., 70 F. Supp. 9

a TI ities adielaticliteitsiicnidniidanstansmnians

Wilmot v. Mudge, 103 U.S. 217 (1880) .......c.cccccccseees

Wood v. United States, 41 U.S. (16 Pet.) 341 (1842) ..

Woolridge v. McKenna, 8 F. 650 (Cir. Ct. Tenn.

SS icindicishlelidesiiaeibeicniiniteisianeniiaiatssuisepeducescanvesesones

Zweygardt v. Colorado Nat’! Bank of Denver, 52

B.R. 229 (Bankr. D. Colo. 1985) .......ccccccecceeeeeee

Statutes and Rules

BE UDC. § 101, 60 O0m. (19D4).....cccccecrccsccsoscoscecssseess

I es Oe cs csstecesenisnsensonsncmaonnivne

BS Sieiitiss Ob IIE Dicisacsiccccnccessuncenennsnsneionieetins

Fe te i ciccnreicdniniccsomnenoncnstiennien

ee Ee I a clasicacrentieteintnndsabsinasson

Se en acess ncdtatilasecalatiiee

12 U.S.C. § 1819(b)(2)(C) (1991) o..ccccccccceseeeeeeeeees

BP ree TFIID ( NID cencescvcsuscvesccnscoccnnnsocscsecescees

Be cs FD csesinctsasccncsesnenteneccenastanscenses

eee I acticcesinscchstcsmiacanisiatbeieaniiinisanen

ss rE a iieassctencinieintiiiensinnsnintannsbetiondien

Se ats OP RO ca stieiccttnsiichissedenadniiesensiienunines

ee ie Oe I etchccnncstenscvinceesinissicsitiicionsicones

Pe EE

irs EIU wtentccsissinsiesncicnisenniptninctnnecete

Page

Viii

Page

28 U.S.C. § 1334(a) (1994)...........sccrccrrcesrscerrseseresees 14

28 U.S.C. § 1334(b) (1994) .......cccecccerreeereesresseeeseees 14

28 U.S.C. § 1334(C)(1) (1994)... ecccccereereeereeereeeenes 28

28 U.S.C. § 1334(C)(2) (1994) .....eecccceceereeereeenneneenenens 24, 28

28 U.S.C. § 1334(d) (1994) .........cccrceerecsrseerressreeseees 28

28 U.S.C. § 1409(b) (1984) ......ccecececceereeeteeetneesenenens 14

2B U.S.C. $§ 144151 .....ccccrcccrcccscccscrcescoseereescoeensoeees 4, aa

28 U.S.C. § 144 1a(1)(3)(C) (1991)... eeceereeeteeeeeeeeees 3

28 U.S.C. § 1446(b) (1991) ......ceecceeeeeseeeteeeeeeseneenes 20

28 U.S.C. § 1447 (1991).........cccccccrcerrcenseserssesesesenes 7,19

28 U.S.C. § 1447(C) (1991)...........crrccrsceesersrereseeseees 13, 20

28 U.S.C. § 1447(d) (1991) ......ceceeereeesreeereeeeeeeseeenes +

24, 25,

27-29

28 U.S.C. § 1452 (1990)...........ccccccrrcerserreserserseseseoes 18-24

28 U.S.C. § 1452(b) (1990) .......csccsecreereeseeeerenenenes <i

19-22,

24, 25,

27-29

28 U.S.C. § 1478 (1978) (repealed 1984)............00+ 4, 22-24

28 U.S.C. § 2075 (1994).......ccsccccrcerrcesrseseressrsesenseess 20

Federal Rule of Bankruptcy Procedure 9014 (1987). 20

Federal Rule of Bankruptcy Procedure 9027(a)(2)

Federal Rule of Bankruptcy Procedure 9027(a)(3)

Sanaa desiescenilesiadnaisbanatiaiieinaieneicentinabnnaselionstiaesenaxenen

Federal Rule of Bankruptcy Procedure 9027(d)

Eira iniinsiddsbhniaisdihiblabbbeidpnonsenbdladbomsamnigninttinescrenasceaee

Miscellaneous

1 Lawrence P. King, Collier on Bankruptcy

§ 3.01 [4] [a] (15th ed. 1994) ......ccccccscssscesessseesese

1 Lawrence P. King, Collier on Bankruptcy

$ 3.01[4][b] (15th ed. 1994) .oo..ccccccccssecesssseesesseees

| Lawrence P. King, Collier on Bankruptcy

§ 3.01[4][g] (15th ed. 1994)... ccccccccscsssseeeeeeee

1A James W. Moore et al., Moore’s Federal

Practice 4 0.156[1] (2d ed. 1993)....ccc..ccssecssssseee.

1A James W. Moore et al., Moore’s Federal

Practice § 0.169[2.-1] (2d ed. 1993) ....ccsccccseessee

2 James W. Moore et al., Collier on Bankruptcy,

ee I aitihiiceiatdnseisiniiidteasenaninn

a ee ecaiiendcneeitacinteliaeatiianiinainibitinssiatsnrsinnibanionin

136 Cong. Rec. $17,580 (Oct. 27, 1990)...

Act of April 5, 1910, 36 Stat. 291... eee.

Act of August 4, 1947, 61 Stat. 732.........:ccccccccseeseees

Act of March 3, 1875, 18 Stat. 470.0...

Act of March 3, 1887, 24 Stat. 552.........cccseseeseeeeees

Act of March 3, 1891, 26 Stat. 826..........ccccceeeeeeeees

B.C. Moon, The Removal of Causes (The Banks

RT PS CD. BG IE ) oeics scccnccccscessccnsccsonccesee

Page

22, 23

Page

Bankruptcy Act of 1800, 2 Stat. 19 .........ccccceeseeeeeees 15

Bankruptcy Act of 1841, 5 Stat. 440.000... cee eceeeee 15

Bankruptcy Act of 1867, 14 Stat. 517 .........:cccceceeeees 14, 15

Bankruptcy Act of 1898, 30 Stat. 544.00... eeceeeees 14-16

Bankruptcy Amendments and Federal Judgeship

Act of 1984, Pub. L. No. 98-353, 98 Stat. 333..... 22, 23

Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92

BE AEE cctatinneniencannsnvesictinataiaanpatininietinnien 14, 15,

Bylaws of the Commercial Law and Bankruptcy

Section of the Connecticut Bar Association, Art.

BD, § 2 CIGD). .ccccccocersccsescorcccesscoscsnvescosoccscessocsoccsecs 2

Civil Rights Act of 1964, Pub. L. No. 88-352, 78

BUR, BD ccevecerecsenserssconsecccssovesnesvenssesineseeovcossccsossoes 3

Frankfurter and Landis, The Business of the

Supreme Court, A Study in the Federal Judicial

System (MacMillan 1928) ............ccccsscesseeseeeeeee 8,9

H.R. 6, 95th Cong., Ist Sess. (1977)........cccsseeseeeseeees 22

H.R. 8200, 95th Cong., 2d Sess. (1978) .........:ce:eee00 22

H.R. Rep. No. 352, 81st Cong., Ist Sess. (1949)....... 12

H.R. Rep. No. 95-595, 95th Cong. Ist Sess. (1977)... 5, 28

Hearings on S. 235 and S. 236 Before Senate

Comm. on the Judiciary, 94th Cong., Ist Sess.

491 (statement of Rex Lee, Assist. Attorney

General) and 806 (Statement of William T.

Poet, Be, Bae.) (IG TS) ccoccrsevernssssessesccesvecscswcsssees 22

Judicial Code of 1911, 36 Stat. 1167.....................00 11, 12,15

I I a mldeaialinins 12

Judicial Improvements Act of 1990, Pub. L. No.

101-650, 104 Stat. 5089

hhh ee et

Report of the Federal Courts Study Committee

cent

Sen. 235, 94th Cong., Ist Sess. (1975)

The Constitution of the Connecticut Bar

Association, Art. II, June 28, 1948.

The Judicial Improvements and Access to Justice

Act of 1988, Pub. L. 100-702, 102 Stat. 4670

No. 94-1530

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,

Petitioner,

ANTHONY A. PETRARCA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE CON-

NECTICUT BAR ASSOCIATION, COMMER-

CIAL LAW AND BANKRUPTCY SECTION, IN

SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

This brief is submitted on behalf of the Connecticut Bar

Association, Commercial Law and Bankruptcy Section

(“CLBS”) as amicus curiae.' CLBS has obtained and files

herewith the written consent of the Respondent to the sub-

mission of this brief. Petitioner, however, has refused its

' The participation of CLBS as amicus curiae in this case has been ap-

proved by the Connecticut Bar Association.

consent. Accordingly, pursuant to Rule 37.4 of the Rules of

this Court, CLBS files herewith its motion for leave to file

this brief as amicus curiae.

As set forth in its bylaws, CLBS was organized to promote

the objects of the Connecticut Bar Association CCBA”)

within the field of commercial law and bankruptcy.” As set

forth in relevant part in the constitution of the CBA:

The objects of this Association shall be to advance

the science of jurisprudence; to promote the admini-

stration of justice; [and] . . . to promote the leadership

of the Bar in matters of public importance in the State

and the Nation... 2°

CLBS submits this brief in support of its position that the

administration of justice generally, and the administration of

bankruptcy in particular, are impaired by the wasteful conse-

quences of protracted litigation over where to litigate. The

decision of the Court of Appeals in this case furthers the goal

of curtailing this type of litigation and CLBS supports affir-

mance of the decision of the court below. Consistent with

Rule 37.1 of the Rules of this Court, CLBS submits this brief

to bring to the attention of the Court critical matters omitted

by the parties.

STATEMENT

Respondent commenced the underlying litigation in this

case in state court in Ohio on March 18, 1992. Petitioner

subsequently removed the action to federal court.” The instant

? Bylaws of the Commercial Law and Bankruptcy Section of the Con-

necticut Bar Association, Art. I, § 2 (1984).

> The Constitution of the Connecticut Bar Association, Art. II, June 28,

1948.

* (J.A. at 18a).

*(J.A. at 19a).

a ad

i a 2 a a in eo A dh AB rhea Pe a LM eres il lH wt

controversy arises from the District Court’s decision to

remand that litigation to the state tribunal in which it arose.

The District Court ordered the remand for jurisdictional

reasons, specifically finding that Petitioner had failed to

timely remove the action to the federal forum.° On appeal, the

Court of Appeals for the Sixth Circuit refused to review the

propriety of the District Court’s remand order, citing lack of

appellate jurisdiction under two statutes: 28 U.S.C. § 1452(b)

and 1447(d).

SUMMARY OF ARGUMENT

Sections 1452(b) and 1447(d) each govern different types

of remands. By its terms, Section 1452(b) applies only in the

bankruptcy context and expressly bars appellate review of a

district court’s decision to remand on “equitable” grounds.* In

contrast, Section 1447(d) is a statute of general applicability.

Except with respect to certain civil rights actions,’ it expressly

bars appellate review of any order remanding on jurisdic-

tional grounds. °

°(J.A. at 31a).

” (J.A. at 36a).

* 28 U.S.C. § 1452(b) (1990) (emphasis added).

” Section 901 of the Civil Rights Act of 1964 amended Section 1447(d) to

permit review of remand orders in certain civil rights cases. Civil Rights

Act of 1964, Pub. L. No. 88-352, § 901, 78 Stat. 266. There are two other

exceptions not contained in Section 1447(d). First, 28 U.S.C. §

1441a(1)(3)(C) (1991) grants the Resolution Trust Corporation the right

to appeal “any order of remand entered by a United States district court”.

A similar provision grants the same right to the Federal Deposit Insurance

Corporation. 12 U.S.C. § 1819(b)(2)(C) (1991). Second, several different

statutes grant the United States the right to appeal remand orders entered

in cases involving the property rights of certain tribes of American Indi-

ans. See 25 U.S.C. § 487(d) (1968), 25 U.S.C. § 642(b) (1970), and 25

U.S.C. § 670 (1972); see also Act of August 4, 1947, 61 Stat. 732.

'° 28 U.S.C. § 1447(d) (1991); see Thermtron Products, Inc. v. Hermans-

dorfer, 423 U.S. 336, 346 (1976) (Section 1447(d) bars review of remand

orders issued for lack of jurisdiction).

Petitioner contends that appellate review of the District

Court’s remand order is not barred by either of these provi-

sions. First, Petitioner contends that Section 1452(b) does not

apply in this case because Section 1452(b) only prohibits re-

view of equitable remand orders, not jurisdictional ones, and

the District Court’s remand order here was jurisdictional in

nature.’ Second, Petitioner argues that Section 1447(d)’s

prohibition against review of jurisdictional remand orders

cannot apply in bankruptcy because to do so would create

* ‘incongruous results’ and ‘needless conflict and inconsis-

tencies’ ” with Section 1452(b).’ ? Regardless of whether Peti-

tioner’s first argument is correct, its second argument

manifestly is not and Section 1447(d) expressly bars review

of the District Court’s remand order in this case.

First, Petitioner presents its argument in an historical vac-

uum. For well over a century, Sections 1441-1451 and their

statutory predecessors (including Section 1447(d) and its

statutory predecessors) have applied to removals and remands

in bankruptcy cases. Indeed, before the enactment in 1978 va

the immediate statutory predecessor to Section 1452(b),"?

movals and remands in bankruptcy cases were routinely of.

fected exclusively pursuant to these general provisions. Since

1887, these general provisions have consistently enforced the

principle that jurisdictional remand orders cannot be appealed.

Petitioner’s argument is thus at odds not only with the express

language of the current Section 1447(d) but also over 100

years of settled law on the subject.

Second, given the relevant history behind Section 1447(d),

Petitioner’s argument that the statute does not apply in bank-

ruptcy requires the inference that, in enacting Section

1452(b), Congress intended to repeal application of Section

'! (Petitioner's Brief, at 8-18).

2 (Petitioner’s Brief, at 19 (quoting Pacor v. Higgins, 743 F.2d 984, 992

(3d Cir. 1984)).

'? 28 U.S.C. § 1478 (1978) (repealed 1984).

1447(d) in the bankruptcy context. There is, however, no ba-

sis for such an inference. Sections 1452(b) and 1447(d) sim-

ply do not conflict, let alone irreconcilably so, and there is

nothing in the legislative history or purpose of either statute

that supports an implicit repeal. In the absence of an irrecon-

cilable conflict, there is no reason to preclude application of

the statute in accordance with its terms. See, e.g., Connecticut

National Bank v. Germain, 503 U.S. 249, 253 (1992) (“so

long as there is no ‘positive repugnancy’ between the two

laws, . . . a court must give effect to both.”).

Petitioner also urges the Court to conclude that Section

1447(d) does not apply on the ground that appellate review of

jurisdictional remands in bankruptcy is desirable due to the

complexity of bankruptcy jurisdiction and the, need for further

judicial development in this important area.'* In making this

argument, however, Petitioner ignores the larger context of

bankruptcy administration as a whole and the proper place for

extensive consideration of its jurisdictional complexities.

As Justice Scalia remarked in Bowen v. Massachusetts, 487

U.S. 879, 930 (1988) (Scalia, J., dissenting), “[nJothing is

more wasteful than litigation about where to litigate .

Bankruptcy administration is particularly sensitive to ‘such

waste, given the inherent lack of resources present in most

bankruptcy cases and the fact that Congress intended bank-

ruptcy administration to be expeditious and inexpensive. wi

Questions of bankruptcy jurisdiction certainly deserve careful

attention on appeal, but removal is simply the wrong place for

it.

As this case demonstrates, the process of litigating over

where to litigate is often cumbersome, time-consuming,

* (Petitioner’s Brief, at 24-25).

'* See, e.g., National Labor Relations Board v. Bildisco & Bildisco, 465

U.S. 513, 517 n.1 (1984) (noting that Congress enacted the business reor-

ganization provisions of the Bankruptcy Code “with the intention that

business reorganizations should be quicker and more efficient . . .”)

(citing H.R. Rep. No. 95-595, p. 5 (1977)).

expensive, and, sometimes, difficult to comprehend. In the

matter sub judice, the ostensible reason for the removal to the

District Court in Ohio was that the state court action was re-

lated in some way to the bankruptcy case of a debtor seeking

reorganization in a bankruptcy court in New York.'® That

bankruptcy case, however, is now long since over,” yet the

parties in this case are still engaged in litigating over whether

the Petitioner may have the case tried in a court that in all

likelihood no longer would have jurisdiction over the mat-

ter.

The questionable value of the endeavor is thus self-evident,

and yet it is likely to repeat itself if the type of appellate re-

view sought by Petitioner is permitted. Congress clearly in-

tended to foreclose this sort of waste and has done so by

statute for over 100 years. Furthermore, in each instance

where it intends to exempt a matter from the general scope of

Section 1447(d), it does so expressly, not implicitly.'? For the

reasons summarized above and discussed in detail below, this

Court should affirm the decision of the Court of Appeals.

'© Petitioner’s strategy was to obtain removal to the District Court in Ohio

and then a transfer of the case to the Southern District of New York where

the bankruptcy was pending. (See J.A. at 16a and 20a).

'” In re Child World Inc., Case No. 92 B 20887 (JG) (Bankr. S.D.N.Y.).

The bankruptcy court confirmed the plan of the related debtor on June 24,

1994.

'® Jurisdiction would likely be lacking because, at this point, the outcome

of the litigation probably would have no impact on the administration of

the debtor’s bankruptcy estate. See, e.g., In re Gardner, 913 F.2d 1515,

1518-19 (10th Cir. 1990) (where dispute “not otherwise related and would

not affect the distribution of assets and administration of the bankruptcy

estate, we hold the bankruptcy court lacked jurisdiction to resolve the dis-

pute”); Jn re Hall's Motor Transit Co., 889 F.2d 520, 522-23 (3d Cir.

1989) (“the usual test of determining whether a civil proceeding, such as

we have here[ between two non-debtor parties], is related to bankruptcy is

whether ‘the outcome of that proceeding could conceivably have any ef-

fect on the estate being administered in bankruptcy.’”) (citing Pacor v.

Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).

'? See note 9, supra.

;

ARGUMENT

I. SECTION 1447 AND ITS STATUTORY PRED-

ECESSORS HAVE LONG APPLIED IN BANK-

RUPTCY AND THERE IS NO BASIS TO CON-

CLUDE THAT SECTION 1447(d) DOES NOT

APPLY IN THIS CASE.

The history of Section 1447(d) and its statutory predeces-

sors is one marked by three relevant themes: promotion of

judicial economy, generous construction towards that end,

and long-standing application in the bankruptcy context.

Likewise, the comparatively brief history of Section 1452(b)

echoes the same themes, but its application is necessarily

slightly differerit. As this Court has made clear, Section

1447(d) governs remands for jurisdictional reasons alone.

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,

346 (1976). On the other hand, Section 1452(b) expressly

applies to remands for “equitable” reasons--a type of remand

Section 1447 clearly does not authorize.

_ Given the different focus of each of these two provisions, it

is hardly surprising that the specific rules governing their

application are distinct in some respects. However, these dif-

ferences do not create a conflict, and there is no valid reason

to infer that, in enacting Section 1452(b), Congress intended

to repeal Section 1447(d) in bankruptcy. Indeed, indulging in

such a presumption would eliminate the only express statu-

tory basis in bankruptcy for remands based on jurisdictional

grounds. Although Petitioner would like to open up this

void, it is a void that Congress filled in long ago. Since

the interpretation urged by Petitioner is at odds with the

*° This is true, of course, only to the extent that the phrase “on any equi-

table ground” contained in Section 1452(b) is construed as not embracing

jurisdictional remands. (Petitioner’s Brief, at 13-18). Respondent argues

that it must. (Respondent’s Brief, at 14-31). If Respondent is correct, then

Section 1452(b) supplies a basis for affirmance of the decision below in-

dependent of Section 1447(d).

long-standing purpose of Sections 1447(d) and 1452(b) as

well as the plain language of Section 1447(d), it is unwar-

ranted.

, . .

A. The History, Purpose, Language and Policy 0

Section 1447(d) Clearly Proscribe Review of

Remand Orders such as the Remand Order in

this Case.

- eee tie

The end of the Civil War marked the beginning of a

matic rise in the jurisdiction of the federal courts, including an

expanded power of removal.” In the immediate post-Civil

War era, removal jurisdiction reached its zenith with the

Act of March 3, 1875.

igi ici i al in a narrow

" Th inal Judiciary Act of 1789 provided for remov

nap of cement. 1 Stat. 73, § 12; see 1A James W. Moore et al.,

Moore’s Federal Practice ¢ 0.156[1] at 14 (2d ed. 1993) (discussing “

moval provisions of the Act of 1789 and ad hoc removal legislation eo

the Civil War). After the Civil War, however, Congress greatly expan

the power. See Frankfurter and Landis, ye re

Mil 1928) {hereinafter “Busi ]; see

wresry: Bs Moore’s Federal Practice supra ¢ 0.156[1] at 14-17.

: j 8 U.S. 561, 562 (1883) (“the

18 Stat. 470, § 2; see Gibson v. Bruce, 10 (

act of 1875 is radically different from any which preceded it”). Section 2

of this Act provided as follows:

That an suit of a civil nature, at law or in equity, now pend-

ing or hereafter brought in any State court where the matter in

dispute exceeds, exclusive of costs, the sum or value of five -

dred dollars, and arising under the Constitution or laws of

United States, or treaties made, or which shall be made, under

their authority, or in which the United States shall be plaintiff or

petitioner, or in which there shall be a controversy between Citi-

zens of different States, or a controversy between citizens of the

same State claiming lands under grants of different States, or a

controversy between citizens of a State of foreign states, citizens,

or subjects, either party may remove said ‘Suit into the circuit

court of the United States for the proper district.

And when in any suit mentioned in this section there shall be a

ich i between citizens of different States,

controversy which is wholly — Sapa

ee he

De. rat Gate

However, in addition to its impact on an already over-

loaded federal judiciary,” the ability to remove an unprece-

dented number of new cases “to distant federal courts made

litigation costly as well as slow, and thus doubly harassing.”

This Court was particularly affected. The practice of prosecut-

ing appeals of removal and remand orders contributed signifi-

cantly to the Court’s overburdened docket which, by 1890,

had reached an impossible load of 1800 cases.~> As conges-

tion and other problems within the federal judicial system

worsened, Congress moved to restrict the removal provisions

with the Act of March 3, 1887.7°

and which can be fully determined as between them, then either

one or more of the plaintiffs or defendants actually interested in

such controversy may remove said suit into the circuit court of

the United States for the proper district.

18 Stat. 470, § 2. Section 2 of the Act provided for the right of removal.

Section 3 prescribed how the right might be effected. See 1A Moore,

Moore’s Federal Practice supra 4 0.156{1] at 17.

See Business of the Supreme Court, at 77-78 (observing in the context

of severe congestion within the federal judicial system that the Act of

1875, expanding the provisions for removal, “added voluminously to the

business of the federal courts without equipping them to discharge it.”).

* Business of the Supreme Court, at 80.

* See Morey v. Lockhart, 123 U.S. 56, 57 (1887) (noting that, under the

authority of Section 5 of the Act of 1875, “numerous cases have been

brought to this court by appeal or writ of error for the review of such

[remand] orders.”); see also Business of the Supreme Court, at 86 (noting

that from the October term of 1884 to the term in 1890, the Supreme

Court’s docket had risen from an impossible level of 1315 cases to the

“absurd total of 1800”). Ultimately, this congestion found meaningful

relief in the substantial reforms in 1891. See also id. at 93-102

(chronicling the efforts at reform leading up to the Act of March 3, 1891,

26 Stat. 826, creating, among other things, the circuit courts of appeals).

* 24 Stat. $52-53; see Business of the Supreme Court, at 93-95

(describing some of its provisions and observing that the Act “eased the

pressure upon the lower courts”). The Act of 1887 is sometimes referred

to as the Act of 1887-88, due to its reenactment August 13, 1888 to cor-

rect some technical mistakes. 25 Stat. 433; see Ex parte Pennsylvania Co.,

(Footnote continued)

The Act of 1887 made removal generally less available and

more exacting.” In addition, for the first time it expressly

prohibited appellate review of remand orders.” This last fea-

ture marked a broad departure from the Act of 1875, which

had expressly authorized such review. With respect to the

scope of this novel bar to review provision, this Court ex-

plained in Morey v. Lockart, 122 U.S. 56, 58 (1997), that the

Act of 1887 eliminated any right of review regardless of the

ground for the remand.”” In addition, although the Act did not

mention extraordinary review by writ of mandamus, this

137 U.S. 451, 454 (1890); 1A Moore, Moore’s Federal Practice supra 4

0.156[1] at 17.

27 See 1A Moore, Moore’s Federal Practice supra ¥ 0.156[1] at 17-18

(discussing Act of 1887).

** Specifically, the Act provided as follows:

Whenever any cause shall be removed from any State court

into any Circuit Court of the United States, and the Circuit Court

shall decide that the cause was improperly removed, and order the

same to be remanded to the State court from whence it came,

such remand shall be immediately carried into execution, and no

appeal or writ of error from the decision of the Circuit Court so

remanding such cause shall be allowed.

24 Stat. 553; see Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. at

346-47 (discussing provision).

?? Section 5 of the Act of 1875 provided that any “order of said circuit

court dismissing or remanding said cause to the State court shall be re-

viewable by the Supreme Court on writ of error or appeal, as the case may

be.” 18 Stat. 472, § 5. Before the Act of 1875, review of remand orders

had not been permitted because such orders were held to be not within the

contemplation of the appellate jurisdiction provisions. Railroad Co. v.

Wiswall, 90 U.S. (23 Wall.) 507, 508 (1875); see also Thermtron Prod-

ucts, Inc. v. Hermansdorfer, 423 U.S. 336, 346 (1976); State of Georgia v.

Rachel, 384 U.S. 780, 786 n.6 (1966) (discussing development); Morey v.

Lockhart, 123 U.S. at 57 (describing previous practice).

“5 637 (The Banks

See also B.C. Moon, The Removal of Causes, § 204, at

Law Publishing Co. 1901) (observing that the Act of 1887 “took away the

right to review . . . no matter on what ground the removal was procured”).

Court nonetheless construed the prohibition to apply to this

form of relief as well.*'

The removal section of the Judicial Code of 19117” embod-

ied in substantial form the provisions of the Act of 1887,°°

and included a bar to review provision virtually identical to

that of its predecessor.** Although the statute again provided

no express prohibition against review through mandamus, this

Court in Jn re Matthew Addy Steamship Commerce Corp.,

256 U.S. 417, 420 (1921), reaffirmed its prior determination

that Congress intended to preclude all forms of appellate re-

view, not simply those listed in the statute.*°

*" In Ex parte Pennsylvania, 137 U.S. at 454, this Court concluded as fol-

4 lows:

| In terms, [the Act of 1887] only abolishes appeals and writs of

error, . . . and does not mention writs of mandamus; and it is un-

questionably a general rule that the abrogation of one remedy

: does not affect another. But in this case, we think, it was the in-

; tention of congress to make the judgment of the circuit court re-

manding a cause to the state court final and conclusive.

* Jud. Code, § 28 (1911), 28 U.S.C. § 71 (1940).

** 1A Moore, Moore’s Federal Practice supra 0.156[1] at 18-19. There

was one intermediary statute between the Act of 1887 and the Judicial

Code of 1911. See Act of April 5, 1910, 36 Stat. 291, § 1.

** As amended in 1914, Section 28 of the Judicial Code of 1911 provided

in pertinent part as follows:

Whenever any cause shall be removed from any State court

into any district court of the United States, and the district court

shall decide that the cause was improperly removed, and order the

same to be remanded to the State court from whence it came,

such remand shall be immediately carried into execution, and no

appeal or writ of error from the decision of the district court so

remanding such cause shall be allowed.

28 U.S.C. § 71 (1940). See Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. at 347-48 (discussing provision).

** In reaching its determination, the Court noted with regret the split of

authority in the lower courts on the particular substantive issue at bar, but

(Footnote continued)

Subsequently, the Judicial Code of 1948 codified the fed-

eral aa canbdnde of its predecessors in 28 U.S.C. §§

1441-1451 (as amended). Although the Judicial Code of 1948

failed to codify the bar to review provision of Section 28 of

the Judicial Code of 1911, this oversight 37 as remedied in

1949 with the addition of Section 1447(d)."’ The current Sec-

tion 1447(d) now reads in full as follows:

(d) An order remanding a case to the State court

from which it was removed is not reviewable on ap-

peal or otherwise, except that an order remanding a

case to the State court from which it was removed pur-

suant to section 1443 of this title [pertaining to certain

civil rights cases] shall be reviewable by appeal or oth-

erwise.

28 U.S.C. § 1447(d).*

In United States v. Rice, 327 U.S. 742, 751-52 (1946), this

i i ing the bar

Court summarized the long-standing policy underlying

to review provision of Section 1447(d) in the following terms:

Congress, by the adoption of the [bar to review

provisions of the various removal Acts since 1887], as

ee - lling,

etheless that “section 28 of the Judicial Code is contro

pp alone has power to afford relief.” Id. Accord Employers

Reinsurance Corp. v. Bryant, 299 U.S. 374, 380-81 (1937) (quoting Ex

parte Pennsylvania, 137 U.S. 451, 454 (1890)).

” a J 0.169[2.-1] at 686,

See 1A Moore, Moore’s Federal Practice supra {

n.1; - also Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. at 347-

48 (mentioning oversight).

” As i Section 1447(d) provided as follows: “An order

HR — State court from which it was removed is not re-

viewable on or otherwise.” 63 Stat. 89; see 1A Moore, Moore's

Federal Practice supra | 0.169[2.-1] at 686.

” _ (1949), reprinted in 1949

See H.R. Rep. No. 352, 81st Cong., Ist Sess. ( a

USCCAN. 1248, 1268 (providing that the new Section 1447 ge

cluded “to remove any doubt that the former law as to the finality of an

order to remand to a State court is continued”).

ct ee CEE a RR Soccer mene hl i, canvas

thus construed [by this Court], established the policy

of not permitting interruption of the litigation of the

merits of a removed cause by prolonged litigation of

questions of jurisdiction of the district court to which

the cause is removed. This was accomplished by deny-

ing any form of review of an order of remand, and, be-

fore final judgment, of an order denying remand. In the

former case, Congress has directed that upon the re-

mand the litigation should proceed in the state court

from which the cause was removed.

The statute and its policy are thus clear: there shall be no

review of remand orders.”

An exception to this blanket rule is to be found in Therm-

tron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976),

which involved a properly removed state court proceeding

that the district court remanded, not on any proper Statutory ba-

sis, but instead on the basis of the court’s crowded docket.*°

Finding such grounds to be completely and transparently un-

authorized by Section 1447(c),*" the Court held that Section

* Accord Mobile Corp. v. Abeille General Ins. Co., 984 F.2d 664, 666

(Sth Cir. 1993); Chandler v. O'Bryan, 445 F.2d 1045, 1057 (10th Cir.

1971); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 533 (6th Cir.

1970), cert. denied, 401 U.S. 939 (1971); In re MacNeil Bros. Co., 259

F.2d 386, 388 (Ist Cir. 1958); Peerless Weighting & Vending Mach.

Corp. v. Public Bldg. Comm. of Chicago, 209 F. Supp. 877, 882 (N.D. Ill.

1962), app. dismissed, 371 U.S. 801 (1962).

* Id. at 340-41.

*' At the time, Section 1447(c) read as follows:

If at any time before final judgment it appears that the case

was removed improvidently and without jurisdiction, the district

court shall remand the case, and may order the payment of just

costs.

28 U.S.C. § 1447(c) (1991). Amended in 1988, the current provision de-

letes the word “improvidently”, adds a 30 day time limit for the filing of

motions to remand, and alters the provision in other non-material respects.

The Judicial Improvements and Access to Justice Act of 1988, Pub. L.

100-702, 102 Stat. 4670.

447(d) did not apply. However, in reaching this conclusion,

the Hn was pe + a admonish that “we neither disturb nor

take issue with the well-established general rule that §

1447(d) and its predecessors were intended to forbid review

by appeal or extraordinary writ of any order remanding a case

on the grounds permitted by the statute.” Furthermore, as

made clear in Gravitt v. Southwestern Bell Telephone Co.,

430 U.S. 723, 724 (1977), “Thermtron did not question but

re-emphasized the rule that § 1447(c) remands are not review-

able.” Thermiron is thus the proverbial exception that proves

the rule. Since the unusual facts of Thermtron are not present

in this case, Thermtron presents no barrier to application of

Section 1447(d) here.

B. Section 1447 and Its Statutory Predecessors

Have Long Applied in Bankruptcy.

It has long been recognized that many types of actions re-

lating to bankruptcy cases may be adjudicated in courts other

than the federal bankruptcy court (including the state courts or

some other federal forum), subject to any relevant statutory

right of removal.’ Until the Bankruptcy Reform Act of

1978, however, the Nation’s various bankruptcy statutes in-

cluded no special removal or remand provisions of their

*2 Thermtron, 423 U.S. at 351-52.

* See, e.g., Bardes v. First National Bank of Hawarden, 178 U.S. 524,

532 (1900) (discussing concurrent jurisdiction over many types of suits

related to bankruptcy matters in the context of the Bankruptcy Acts of

1867 and 1898); see also 28 U.S.C. § 1409(b) ee —s certain

ions in to be t in an appropriate forum district

rage =a side 28 U.S.C. § 1334(a)}-(b) (1994) (pro-

viding in subsection (a) that the District Courts shall have exclusive and

original jurisdiction over bankruptcy cases, but pene Seer

(b) that the district courts have original but not exclusive jurisdiction 0

proceedings arising under title 11, or arising in or related to cases under

title 11).

“ Pub. L. 95-598, 92 Stat. 2549.

Mite. cities ane Maou ~~ ——-— —_

own.” Instead, removal and remand was routinely accom-

plished and analyzed pursuant to the general federal removal

and remand provisions of Sections 1441-1451 and their

statutory predecessors.

For example, in Woolridge v. McKenna, 8 F. 650 (Cir.

Ct. Tenn. 1881), the assignee” of a bankrupt under the

Bankruptcy Act of 1867 commenced an action in state court

against a minor defendant seeking the avoidance of a convey-

ance of land.*’ The minor defendant sought removal to the

federal circuit court™ pursuant to the Act of 1875."? In decid-

ing to remand the matter for lack of jurisdiction over the mi-

nor for want of a binding appearance by a representative

authorized to appear on the minor’s behalf and effect the re-

moval,” the court analyzed the removal process in bank-

ruptcy as follows: “the assignee has been vested with power

to bring this suit in the state court where he did bring it, and

* The Nation has had five bankruptcy Acts: The Bankruptcy Act of 1800,

2 Stat. 19 (repealed 1803); The Bankruptcy Act of 1841, 5 Stat. 440

(repealed 1843); The Bankruptcy Act of 1867, 14 Stat. 517 (repealed

1878); The Bankruptcy Act of 1898, 30 Stat. 544 (repealed 1979), and the

current Bankruptcy Code enacted pursuant to the Bankruptcy Reform Act

of 1978.

“ Section 13 of the Bankruptcy Act of 1867 provided for creditors to elect

“one or more assignees of the estate of the debtor .. . .” The function of

the assignee was similar to that of a trustee under the current Bankruptcy

Code. See 11 U.S.C. § 702 (1984) (election of trustee in Chapter 7 case);

11 U.S.C. § 704 (1986) (duties of trustee).

”’ See id. at 670, 672. Section 35 of the Bankruptcy Act of 1867 provided

for the avoidance of fraudulent transfers, and empowered the assignee to

“recover the property, or the value thereof, as assets of the bankrupt.” See

11 U.S.C. § 548 (1994) (fraudulent transfers).

“ The Judicial Code of 1911 abolished the circuit courts, leaving the

present structure of District Courts, the Circuits Courts of Appeals and the

Supreme Court. Judicial Code of 1911, § 289, 36 Stat. 1167.

” Woolridge, 8 F. at 670.

Id. at 675-76.

we can only obtain jurisdiction by removal as in other

cases.”

Similarly, in Feibelman v. Packard, 109 U.S. 421 (1883), a

district court sitting in bankruptcy ordered the seizure of

property of the debtor in the hands of a third party.*’ The third

party commenced an action in state court against the marshal

who had seized the property. While the action was pending,

the Act of 1875 took effect, the suit was removed pursuant to

its provisions, and this Court subsequently affirmed the pro-

priety of the removal as relating to a question in bank-

ruptcy and an order of the bankruptcy court.” See also

Spencer v. Duplan Silk Co., 191 U.S. 526, 531-32 (1903)

(case concerning review of appeal of decision in bankruptcy

matter removed to federal court on grounds of diverse citizen-

ship under general removal statute).

Subsequently, under the Bankruptcy Act of 1898, removals

and remands were likewise accomplished under the general

removal statutes. As explained in the leading bankruptcy

treatise of the time: “removal of the cause to the proper dis-

trict court may be had only under the same conditions as gov-

ern removal generally.” 2 James W. Moore et al., Collier on

Bankruptcy, § 23.21 at 645 (14th ed. 1976) (emphasis added).

Thus, for example, whenever a trustee in bankruptcy com-

menced an action in state court against a defendant under a

provision of the Bankruptcy Act, the defendant was permitted

to “obtain removal to the federal court only on the same basis

5! Id. at 676-77 (emphasis added).

*2 Id. at 424-25.

* The Court phrased the question as follows: “The question . . . is,

whether under the bankrupt act of 1867, the district court of the United

States, sitting in bankruptcy, has jurisdiction to order the seizure and de-

tention of goods, the property of the bankrupt, although in possession of

another under claim of title, and whether, in a subsequent action against

the officer for obedience to such an order, he may justify the seizure by

proof that the title to the property was at the time in the bankrupt.” /d. at

426.

. a See

as in any other case.” 2 Moore, Collier on Bankru

23.21 at 647. 7 soba

Lastly, courts acting in cases under the current Bankruptc

Code” have also applied the bar to review principle found in

Section 1447(d) to bar review of jurisdictional remand orders.

See, e.g., Hernandez v. Brakegate, Ltd., 942 F.2d 1223, 1225

(7th Cir. 1991) (“Sections 1447 and 1452 belong to Chapter

89 of Title 28 . . . [and nJothing in text or structure suggests

that the general provisions of § 1447 are inapplicable to cases

removed under § 1452, any more then they would fall away

for removals under § 1442 (federal officers), § 1442a

(members of armed forces), or other statutes authorizing re-

moval.”). Contra Pacor v. Higgins, 743 F.2d 984, 992 (3d

Cir. 1984) (holding that Section 1447(d) does not apply in

bankruptcy). The issue before the Court is whether applica-

tion of Section 1447(d) in the bankruptcy context under the

current Bankruptcy Code is im iven the exi

28 U.S.C. § 1452(b). eee

* See also, e g., Tenenbaum v. Walter E. Heller &

, @Z., . ‘ Co., ‘ "

1085, 1088-89 (S.D.N.Y. 1970) (applying general remand aan le

analyzing whether to remand actions related to case); Whit-

man v. Chicago & N.W. Ry. Co., 70 F. Supp. 9, 11-12 (D. Minn. 1947)

(analyzing issue of remand pursuant to the general federal removal provi-

sions), Swofford v. Cornucopia Mines of Oregon, 140 F. 957, 958-59 (Cir.

Ct. D. Ore. 1905) (remanding case removed by trustee in bankruptcy).

** 11 U.S.C. § 101, et seq. (1994)

56 o:

Similarly, this Court in Rice suggested that Section 1447(d) sh

construed as a statute of general applicability: (d) should be

As we have already indicated, and as the legislative histo

shows, the [bar to review provisions] of the roy 1887 were in-

tended to be applicable not only to remand orders made in suits

removed under the Act of 1887, but to orders of remand made in

cases removed under any other statutes, as well.

United States v. Rice, 327 U.S. 742, 751-52 (1946); see also Employers

Reinsurance Corp. v. Bryant, 299 U.S. at 380-81 (the provisions of the

Act of 1887 are intended to reach and include all cases removed from a

state court into a federal court and remanded by the latter’).

C. Nothing in Section 1452 Prevents Application

of Section 1447(d) in this Case.

Section 1452 provides as follows:

a) A may remove any claim or cause of ac-

rt. i a evil. action other than a proceeding before the

United States Tax Court or a civil action by a govern-

mental unit to enforce such governmental unit’s police

or regulatory power, to the district court for the district

where such civil action is pending, if such district

court has jurisdiction of such claim or cause of action

under section 1334 of this title [the general bankruptcy

jurisdictional provision].

(b) The court to which such claim or cause of action

is removed may remand such claim or cause of action

on any equitable ground. An order entered under this

subsection remanding a claim or cause of action, or a

decision not to remand, is not reviewable by appeal or

otherwise by the court of appeals under section 158(d),

1291, or 1292 of this title or by the Supreme Court of

the United States under section 1254 of this title.

By its own terms Section 1452 authorizes remands “on any

equitable ground”, and this has been held to embrace a variety

of non-jurisdictional justifications. See, e.g., River Cement

Co. v. Bangert Bros. Constr. Co., 852 F.Supp. 25, 27 (D. Colo.

1994) (remanding case after considering the following fac-

tors: “1) duplication of judicial resources; 2) uneconomical

use of judicial resources; 3) effect of remand on the admini-

stration of the bankruptcy estate; 4) case involves questions of

state law better addressed by a state court; 5) comity; 6)

prejudice to the involuntarily removed parties; 7) lessened

7 28 U.S.C. § 1452 (1990).

possibility of an inconsistent result, and 8) expertise of the

court where the action originated”).°

In contrast, as demonstrated above, Section 1447 is limited

to remands on jurisdictional grounds. The two thus govern

different specie of remands. They do not conflict.

In arguing that Sections 1452(b) and 1447(d) do conflict,

Petitioner relies heavily on Pacor v. Higgins, 743 F.2d 984

(3d Cir. 1984). In Pacor, however, the Court of Appeals for

the Third Circuit indulged in a demonstrably erroneous

analysis.

First, the court compared the general removal provisions,

28 U.S.C. §§ 1441-1447, to Section 1452. Second, the court

identified differences between these two sets of provisions.

Third, the court concluded that, since there are differences

between the general provisions and Section 1452, none of the

provisions of the former could apply in the context of the lat-

ter.

Concededly, there are, of course, differences between re-

moval practices under Sections 1441-1447 and Section

1452(b). As Petitioner points out,” it is true, for example, that

** See also Scherer v. Carroll, 150 B.R. 549, 552 (D. Vt. 1993); In re Riv-

erside Nursing Home, 144 B.R. 951, 956-957 (S.D.N.Y. 1992); Drexel

Burnham Lambert Group, Inc. v. Vigilant Ins. Co., 130 B.R. 405, 407

(S.D.N.Y. 1991); Lone Star Indus., Inc. v. Liberty Mut. Ins., 131 B.R. 269,

(D. Del. 1991); Baxter Healthcare Corp. v. Hemex Liquidation Trust, 132

B.R. 863, 867-868 (N.D. Ill. 1991); Cook v. Griffin, 102 B.R. 875, 877

(N.D. Ga. 1989); Gorse v. Long Neck, Lid, 107 B.R. 479, 482 (D. Del.

1989); In re Fay, 155 B.R. 1009, 1012 (Bankr. E.D. Mo. 1993); Jn re

Branded Products, Inc., 154 B.R. 936, 947 (Bankr. W.D. Tex. 1993); Jn

re El Paso Pharm. Inc., 130 B.R. 492, 497 (Bankr. W.D. Tex. 1991); Jn re

Ross, 64 B.R. 829, 835 (Bankr. S.D.N.Y. 1986); Zweygardt v. Colorado

Nat'l Bank of Denver, 52 B.R. 229, 234-235 (Bankr. D. Colo. 1985); 1

Lawrence P. King, Collier on Bankruptcy ] 3.01[4][g] at 3-98-99 (15th

ed. 1994) (discussing factors and Section 1452(b) generally).

*? Id. at 992.

(Petitioner’s Brief, at 24-25).

the time for filing a removal petition under the general provi-

sions is different from practice under Section 1452. This dif-

ference, however, is a narrow one and arises not because of a

conflict between Sections 1447(d) and 1452(b), but because

of a difference between Section 1446(b) and Rule 9027(a)(2)

of the Federal Rules of Bankruptcy Procedure.” This hardly

suffices to demonstrate an implicit repeal of Section 1447(d)

in bankruptcy.

It cannot be the case that a rule of procedure can create a

conflict that results in the repeal sub silentio of an important

statutory prohibition that has applied in bankruptcy for over a

century. This is particularly true given the prohibition ex-

pressed in 28 U.S.C. § 2075 (1994) that the rules of bank-

ruptcy procedure “shall not abridge, enlarge, or modify any

substantive right.”

In addition, it should be pointed out that, in the specific

context of remand procedure, there is no conflict between

Section 1447(c) (specifying the time limit for filing a motion

to remand) and Fed. R. Bankr. P. 9027(d) (1991) (providing

that a motion for remand shall be governed by Fed. R. Bankr.

P. 9014 (1987), but not specifying a time limit). Lastly,

*! Compare 28 U.S.C. § 1446(b) (1991) (providing a thirty day time limit

for the filing of the notice of removal) with Fed. R. Bankr. P. 9027(a)(2)

(1991) (providing a formula for measuring the time limits for the filing of

removal notices if the action is commenced before the bankruptcy petition

is filed). It should be noted, however, that Fed. R. Bankr. P. 9027(a)(3)

(1991) (specifying the time limit for filing a notice of removal if the ac-

tion is commenced after the commencement of the bankruptcy case) is

virtually identical to Section 1446(b).

® 28 U.S.C. § 2075 (1994). Furthermore, the differences in the filing

deadline rules may be readily harmonized. For example, it might be con-

cluded that Fed. R. Bankr. P. 9027 simply does not apply in any situation

where Section 1446(b) does apply. See, e.g., Intra Muros Trust v. Truck

Stop Scale Co., 163 B.R. 344, 345 (N.D. Ill. 1994) (holding that thirty day

time limit of Section 1446(b) applies in a bankruptcy removal under Sec-

tion 1452 notwithstanding Fed. R. Bankr. P. 9027(a\(2)). Contra In re

Eagle Bend Development, 61 B.R. 451, 458 (Bankr. W.D. La. 1986)

(holding that Fed. R. Bankr. P. 9027 governs in bankruptcy removal cases).

differences between removal practice under Sections 1441-

1451 and Section 1452 cannot justify ignoring Congress’

clear expression in the remand context of its intent to curtail

the wasteful practice of protracted litigation over where to

litigate.

/ On this last point, this Court’s analysis in Connecticut Na-

tional Bank v. Germain, 503 U.S. 249 (1992) is highly in-

structive. There this Court considered whether a jurisdictional

statute applicable only in bankruptcy, 28 U.S.C. § 158(d)

(1994), implicitly repealed a jurisdictional statute of general

applicability, 28 U.S.C. § 1292(b) (1992). Respondent in that

case urged that it did because (1) the general statute provided

jurisdiction that the more specific statute did not and the spe-

cific statute should control, and (2) app'ication of both 158(d)

and 1292(b) would create an “unusual” overlap in the larger

jurisdictional scheme since Section 1292’s companion, 28

U.S.C. § 1291 (1982), largely provides the same kind of ju-

risdiction as does Section 158(d).” Recognizing, among

other things, that the Courts of Appeals had long exercised in

bankruptcy the type of jurisdiction provided in Section

1292,” and that an implicit repeal would leave the Courts of

Appeals completely without jurisdiction in cases otherwise

governed by Section 1292, this Court refused to infer an im-

plicit repeal and, instead, concluded that Section 1292(b)

must be applied as written regardless of any overlap that

might arise between Section 158(d) and Section 1291. Ger-

main, 503 U.S. at 253-54. This Court should reach the same

conclusion in the context of Sections 1452(b) and 1447(d).

. Furthermore, nothing in the legislative history behind Sec-

tion 1452 indicates any evidence of a Congressional intent to

repeal Sect yn 1447(d) in the bankruptcy context. On the

‘ Germain, 503 U.S. at 253-54; see also id. at 255 (Stevens, J., concur-

ring) (noting the unusual overlap between Section 158(d) and 1291).

* Id. at 256 (O’Conner, J., concurring) (“C probably d

b dee g) (“Congress y did not in-

tend to deprive the Courts of Appeals of their long-standing jurisdiction

over interlocutory appeals in bankruptcy.”).

contrary, reference to the underlying purpose of Section 1452

only supports continued application of both provisions in ac-

cordance with their terms.

D. Reference to the Relevant Legislative History

and Purpose of Section 1452(b) Refutes Peti-

tioner’s Position.

Section 1452 is derived almost verbatim from former 28

U.S.C. § 1478. The text of Section 1478 as originally pro-

posed in the House on January 4, 1977." Subsequently, in

preparation for enacting what ultimately became the Bank-

ruptcy Reform Act of 1978 (the “Reform Act » the House

passed a bankruptcy bill including language virtually identical

to the 1977 proposal.” This language survived virtually

a 3-88-89. Section

See | King, Collier on Bankruptcy supra { 3.01([4)[a] at

1478 was implicitly repealed by Pub. L. No. 98-353, 98 Stat. 335 (1984).

i 75,a

HR. 6, 95th Cong., Ist Sess. (1977). Previously, on January 17, 1975,

far more elaborate removal provision had been introduced in the Senate.

Sen. 235, 94th Cong., Ist Sess. (1975). The bill would have authorized the

bankruptcy court to remand any action as follows:

(3) Remand When Removal Is Improvident. ache time be-

fore final judgment entered by the bankruptcy cc appears

that the action was removed improvidently and without jurisdic-

tion, the bankruptcy court shall remand the action and may order

the payment of just costs. A certified copy of the order of remand

shall be mailed by the clerk of the bankruptcy court to the clerk

of the court to which the case is remanded. The action may there-

upon proceed in the court as if the removal had not occurred.

ere was no provision governing review on appeal. Comments on the

a were cael at public hearing from two individuals. See Hear-

ings on S. 235 and S. 236 Before Senate Comm. on the Judiciary, 94th

Cong., Ist Sess. 491 (statement of Rex Lee, Assist. Attorney General) and

806 (Statement of William T. Plumb, Jr., Esq.) (1975).

*’ Pub. L. No. 95-598, 92 Stat. 2549 (1978).

* H.R. 8200, 95th Cong., 2d Sess. (1978), 124 Cong. Rec. H466-472

(Feb. 1, 1978). H.R. 8200 provided as follows:

(Footnote continued)

> ee,

unchanged in the final draft of the Reform Act.”

The only significant difference in the language of Section

1452 and 1478 is that Section 1452 contemplates removal to

the district court, while Section 1478 contemplated removal

directly to the bankruptcy court.”” The reason for this change

stems from this Court’s decision in Northern Pipeline Constr.

Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Brennan,

J., plurality opinion), invalidating the bankruptcy jurisdic-

tional provisions. Following Marathon, Congress revamped

the entire bankruptcy jurisdictional system, conferring a larger

supervisory role on the district courts--hence the change in

Section 1452.”' As with the history of the enactment of Sec-

tion 1478, however, nothing in the transformation of Section

Removal to the bankruptcy courts.

(a) A party may remove any claim or cause of action in a civil

action, other than a proceeding before the United States Tax

Court or a civil action by a Government unit to enforce such

governmental unit’s police or regulatory power, to the

court for the district where such civil action is pending, if the

bankruptcy courts have jurisdiction over such claim or cause of

action.

(b) The court to which such claim or cause of action is re-

moved may remand such claim or cause of action on any equita-

ble ground. An order under this subsection remanding a claim or

cause of action, or a decision not so remanding, is not reviewable

by appeal or otherwise.

® See Pub. L. No. 95-598, 92 Stat. 2667 (1978).

” See | King, Collier on Bankruptcy supra ¥ 3.01 [4][a] at 3-89.

”' Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L.

No. 98-353, 98 Stat. 333 (1984); see In re Clay, 35 F.3d 190, 192-93 (Sth

Cir. 1994) (discussing Marathon and changes to bankruptcy jurisdictional

system following it); Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d

1228, 1234-35 (3d Cir. 1994) (same); 1 King, Collier on Bankruptcy su-

pra ¥ 3.01[4)}[a] at 3-89. Consistent with these revisions, Section 1452

now contemplates removal to the District Court, reference of the matter to

a bankruptcy judge, and then a right of review of the bankruptcy judge’s

decision by the district court.

1478 into Section 1452 supports an implicit repeal of Section

1447(d).”

Section 1452 was subsequently amended as part of the Judicial

Improvements Act of 1990. The amendment replaced the stat-

ute’s general bar to review provision with a more specific one,

clarifying the elimination of all right of review beyond the dis-

trict court level by enumerating the appellate jurisdictional Stat-

utes expressly disabled by the provision. On the issue of

motive, the findings section of the Improvement Act identifies

“[t]he problems of cost and delay in civil litigation” as the gen-

eral target of the amendment.’” Similarly, the legislative history

explains the amendment to Section 1452(b) as follows:

Section 309 would amend 11 U.S.C. § 305(c) and

28 U.S.C. 1334(c)(2) and 1452(b) to clarify that, with

respect to certain determinations in bankruptcy cases,

they forbid only appeals from the district courts to the

courts of appeals, not from bankruptcy courts to the

district courts.

The proposed amendment would modify these three

sections to provide that the decision of the bankruptcy

court is not reviewable ‘by the court of appeals . . . or

by the Supreme Court of the United States . . . .” Such

determinations would therefore be reviewable by the

district court.

Speeding the disposition of these types of motions

will better serve the purpose of the limitation on appeals

from the district courts to the courts of appeals.

” See | King, Collier on Bankruptcy supra { 3.01[4}[b] at 3-89.

™ Pub. L. No. 101-650, § 309, 104 Stat. 5089 (1990).

™ Pub. L. No. 101-650, § 102, 104 Stat. 5089 (1990).

5 136 Cong. Rec. $17,580 (Oct. 27, 1990). See also Report of the Federal

Courts Study Committee, April 2, 1990, at 77 (discussing recommended

change to Section 1452(b)).

Far from suggesting the inapplicability of Section 1447(d) in

the bankruptcy context, the legislative history to the 1990

amendment actually suggests the opposite: Congress intended

to eliminate appellate review of orders to promote judicial

economy and administrative efficiency. This is consistent

with continued application of Section 1447(d) in bankruptcy,

and not an implicit intent to repeal.

The foregoing demonstrates that there is no evidence to sup-

port the implicit repeal of Section 1447(d) in the bankruptcy

context and, in urging repeal, Petitioner has failed to demon-

strate otherwise. Reference to the relevant rules of statutory

construction cements the conclusion that Section 1452(b) does

not implicitly repeal Section 1447(d) in bankruptcy.

E. The Relevant Rules of Statutory Construction

Refute Petitioner’s Contention that Section

1447(d) Does Not Apply in Bankruptcy.

A cardinal rule of statutory construction often repeated by

this Court dictates that repeals by implication are not favored

and will not be found unless the congressional intent to repeal

is “clear and manifest.” Red Rock v. Henry, 106 U.S. 596, 602

(1883). Accord Radzanower v. Touche Ross & Co., 426 U.S.

148, 154 (1976); United States v. Borden Co., 308 U.S. 188,

198 (1939); Posadas v. National City Bank, 296 U.S. 497,

503 (1936); United States v. Tynen, 78 U.S. (11 Wall.) 88, 92

(1871). The party urging implied repeal bears a heavy burden

in establishing the requisite intent. Amel v. United States, 384

U.S. 158, 165-66 (1966); see also Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (repeal by impli-

cation will not be lightly inferred).

As this Court has identified, repeal by implication may be

tolerated in two specific, well-settled situations:

(1) where provisions in the two acts are in irreconcil-

able conflict, the later act to the extent of the conflict

constitutes an implied repeal of the earlier one; and (2)

if the later act covers the whole subject of the earlier

one and is clearly intended as a substitute, it will op-

erate similarly as a repeal of the earlier act.

Posadas, 296 U.S. at 503. Neither situation is present here.

Irreconcilability has been found only where it is

“impossible” to give effect to both statutes. See Wilmot v.

Mudge, 103 U.S. 217, 221 (1880). Accord Germain, 503 U.S.

at 253 (“so long as there is no ‘positive repugnancy between

the two laws, . . . a court must give effect to both.”) (citation

omitted); TVA v. Hill, 437 U.S. 153, 190 (1978); Morton v.

Mancari, 417 U.S. 535, 550-51 (1974); Georgia v. Pennsylva-

nia R.R. Co., 324 U.S. 439, 456-57, reh’g denied, 324 U.S. 890

(1945) (“Only a clear repugnancy between the old law and the

new results in the former giving way . . .”); Borden, 308 U.S. at

198-99. Lacking here is anything remotely akin to the kind of

irreconcilable conflict necessary to support the conclusion that

one provision overturns the other in the bankruptcy context. See

Mancari, 417 U.S. at 551; Borden, 308 U.S. at 198.

As this Court has stated in the context of defining when one

statute may implicitly repeal another, “it is not sufficient to es-

tablish that subsequent laws cover some or even all of the cases

provided for by it; for they may be merely affirmative, or cu-

mulative or auxiliary.” Wood v. United States, 41 U.S. (16 Pet.)

341, 362 (1842), quoted in Borden, 308 U.S. at 198. Accord

Germain, 503 U.S. at 253. In this case, neither statute is offen-

sive to the other and, because both are easily reconciled through

concurrent application, effect should be given to both provi-

sions. Germain, 503 U.S. at 252; Mancari, 417 U.S. at 551;

Borden, 308 U.S. at 198.”°

76 As this Court has likewise stated, “(t]he courts are not at liberty to pick

and choose among congressional enactments, and when two statutes are

capable of co-existence, it is the duty of the courts, absent a clearly ex-

pressed congressional intention to the contrary, to regard each as effec-

tive.” Morton v. Mancari, 417 U.S. 535, 551 (1974). This preference for

giving effect to congressional enactments wherever possible is thus well

established. See, e.g., Radzanower v. Touche Ross & Co., 426 U.S. 148,

155 (1976) (statutes should each be given effect where possible), United

States v. Borden Co., 308 U.S. 188, 198 (1939) (“[WJhen there are two

acts upon the same subject, the rule is to give effect to both if possible.”).

In construing a statute, the Court’s duty is to give meaning

to the legislature’s intent. Caminetti v. United States, 242 U.S.

470, 485 (1917). The starting point for this inquiry is, of

course, the statute’s language. Germain, 503 U.S. at 253-54

(“We have stated time and again that courts must presume

that a legislature says in a statute what it means and means in

a statute what it says there.”); Mallard v. United States Dis-

trict Court, 490 U.S. 296, 300 (1989); United States v. Ron

Pair Enter., Inc., 489 U.S. 235, 241 (1989); Landreth Timber

Co. v. Landreth, 471 U.S. 681, 685 (1985). When the statute’s

language is clear, the inquiry should end where it begins.

Germain, 503 U.S. at 254; Ron Pair, 489 U.S. at 241; United

States v. Rutherford, 442 U.S. 544, 551 (1979). “The plain

meaning of legislation should be conclusive, except in the

‘rare cases [in which] the literal application of a statute will

produce a result demonstrably at odds with the intention of its

drafters.” Ron Pair, 489 U.S. at 242 (quoting Griffen v.

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982); see

Demarest v. Manspeaker, 498 U.S. 184, 190-91 (1991); Rubin

v. United States, 449 U.S. 424, 430 (1981).

In this case, not only is continued application of Section

1447(d) in the bankruptcy context demonstrably in keeping

with the intent of its drafters, it is also in keeping with the

general policies underlying Section 1452(b) as well as its own

express language. Section 1447(d) means what it says” and

there is no reason not to apply it in the bankruptcy context as

it (and its predecessors) have been applied for over 100 years.

II. Section 1447(d) Should Be Construed in the

Larger Context of the Policies and Purposes of the

Bankruptcy Code.

Further support for the conclusions reached above is to be

found from analysis of the issues within the larger context of

the policies that animate bankruptcy administration as a

” See 1A Moore, Moore’s Federal Practice supra J 0.169[2.-1] at 688

(“Subsection (d) of § 1447 means exactly what it says.”’).

whole. As is clearly identified in the relevant legislative his-

tory, the drafters of the Bankruptcy Code envisioned a process

that would be both expeditious and economical." In light of

this intent, as well as Congress’ general intent to eliminate pro-

tracted litigation over where to litigate, there can be no pre-

sumption that the drafters of the Bankruptcy Code intended to

permit wide-open appeals of jurisdictional remand orders.

Moreover, Sections 1447(d) and 1452(b) should be con-

strued in light of Congress’ systematic efforts in a variety of

bankruptcy statutes to curtail appellate review in the context

of litigation over where to litigate. In several instances, the

bankruptcy statutes authorize the district courts to defer adju-

dication of an issue to some other tribunal." In each of these

instances, however, Congress has generally denied appellate

review of the decision to defer in order to accomplish its ob-

jectives of judicial economy. Section 1452(b) is merely one

137 B.R. 993, 997 (Bankr. E.D. Mo. 1992) (relying on H.R. Rep. No. 95-

595, 95th Cong., Ist Sess. 354 (1977) and stating “Congress intended that

the bankruptcy courts continue to use [11 U.S.C. § 502(c) prescribing a pro-

cedure for the estimation of contingent claims] to facilitate the speedy and

expeditious resolution of claims in bankruptcy courts.”).

” See 11 U.S.C. § 305(a) (1991) (permitting the bankruptcy court to ab-

stain from hearing a bankruptcy case or suspend proceedings in a case in

the interests of the parties and for other reasons); 28 U.S.C. § 1334(c)(1)

(1994) (permitting the court to abstain from hearing any proceeding

within a bankruptcy case on principles of comity), 28 U.S.C. § 1334(cX(2)

(1994) (requiring the court to abstain under certain circumstances).

aaa the nih dy is not reviewable = Sec a7, 1900 :

“ . Rec. ’ ’

1334(d) (1994) (same); 136 Cong ra £3

instance among several in which Congress has acted to pre-

vent waste and inefficiency.*'

Given the inherent lack of resources present in most bank-

ruptcy cases, the administrative process in bankruptcy is par-

ticularly sensitive to issues of waste. Although Petitioner

urges that appellate review of jurisdictional issues in the re-

moval context would serve the salutary purpose of advancing

the jurisprudence in this area, the context is clearly inappro-

priate. Questions of bankruptcy jurisdiction merit careful de-

liberation, but it makes no sense to suggest that Congress

intended this deliberation to occur in the removal context. The

weight of the law, history, logic, experience and policy stands

against such a proposition.

(discussing purpose of 1990 amendments to these sections which further

limited appellate review).

*' The Court of Appeals for the Second Circuit has drawn the appropriate

connection in this context:

The Senate report accompanying § 305 states: “This section rec-

ognizes that there are cases in which it would be appropriate for

the court to decline jurisdiction . . . .” S. Rep. No. 95-989 at 35,

U.S. Code Cong. & Admin. News 1978, pp. 5787, 5821. Such

abstention provisions in the context also appear at 28

U.S.C. §§ 1334(c) ana 452(b). These provisions permit a judge

to refuse to assert jurisdiction over a case in favor of a proceeding

in an alternate forum. Such abstention decisions are normally

made at the outset of a case, before the abstaining court has acted

to affect any of the parties’ substantive rights and are, appropri-

ately, unreviewable because they would place an unwarranted

burden on scarce appellate resources and because the merits will

be adjudicated elsewhere, from which an appeal will presumably

then follow. See 28 U.S.C. §§ 1334(c)(2), 1452(b) (decisions to

abstain not reviewable by courts of appeals by appeal or other-

wise). See also 28 U.S.C. § 1447(d) (order remanding cases to

state courts for lack of subject matter jurisdiction unreviewable).

In re Axona Int'l Credit & Commerce, Lid., 924 F.2d 31, 35 (2d Cir.

1991). While Section 1447(d) applies to different kinds of remands than

does Section 1452(b), its basic purpose is the same and it fulfills the same

basic policies and goals. It would be inconsistent with the common poli-

cies and goals of these collective provisions to conclude that Section

1447(d) does not apply in bankruptcy.

CONCLUSION

For the foregoing reasons, the decision of the Court of Ap-

peals should be affirmed.

G. ERIC BRUNSTAD, JR.*+

PETER C.L. ROTH

PATRICIA A. SHACKELFORD

HEBB & GITLIN

One State Street

Hartford, Connecticut 06103

(203) 240-2700

Attorneys for Amicus Curiae

* Counsel of Record

+ Visiting Lecturer of Law, Yale Law School, New Haven,

Connecticut

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.