Opposition Brief — Skywark v. United States Lines, Inc.

Supreme Court brief1995

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Supreme

No. 95-300 “rests -

SEP 20 1905

IN THE

| CLERK

Supreme Court of the United Statos———

OCTOBER TERM, 1995

PETER SKYWARK,

Petitioner,

—_—_V—

UNITED STATES LINES, INC. AND UNITED STATES LINES

(S.A.) INC. REORGANIZATION TRUST,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

JEREMY J. O. HARWOOD

Counsel of Record

HEALY & BAILLIE

29 Broadway

New York, New York 10006-3293

(212) 943-3980

Attorneys for Respondent

Of Counsel:

PHILIP S. LA PENTA

PARTIES TO THE PROCEEDING

AND RULE 29.1 STATEMENT

The parties to this proceeding are Petitioner Peter

Skywark and Respondent the United States Lines, Inc. & United

States Lines (S.A.) Inc. Reorganization Trust (the “Trust”).

The Trust is a successor-in-interest to United States Lines, Inc.

and United States Lines (S.A.) Inc. It has no parent companies

or subsidiaries.

TABLE OF CONTENTS

PAGE

PARTIES TO THE PROCEEDING

AND RULE 29.1 STATEMENT .............. i

py FA) ge gs errr rrr err il

TABLE OF AUTHORITIES ..................... iV

COUNTER-STATEMENT OF THE CASE ......... 2

REASONS FOR DENYING THE WRIT............ 5

A. THE SECOND CIRCUIT’S DECISION

AFFIRMING THE DISTRICT COURT’S

READING OF THE PLAIN LANGUAGE

OF THE CODE WAS NOT ERRONEOUS

AND DOES NOT RAISE AN IMPORTANT,

UNSETTLED ISSUE OF LAW ........ 5

B. THE SECOND CIRCUIT’S DECISION

CREATES NO CONFLICT WITHIN THE

CG EEED + 36 Cxsc ih eee ees 5

ae THE SECOND CIRCUIT DID NOT

ENGAGE IN ANY EXAMINATION OF

LEGISLATIVE HISTORY IN BREACH OF

RULES OF STATUTORY

CAPE EPE BURY bcs cceea eugene. 13

iil

D. THE “APPLICABLE NONBANKRUPTCY

LAW” FIXING THE THREE YEAR

PERIOD FOR MARITIME TORT CLAIMS

DOES NOT INCLUDE SUSPENSION BY

EQUITABLE TOLLING 15

CONCLUSION 18

TABLE OF AUTHORITIES

Cases: PAGE

Aslanidis v. United States Lines, Inc., 7 F.3d 1067

Cee Ga Ree uence isc a het eke 6, 7, 9-16

Banque Arabe v. Maryland Nat. Bank, 850 F. Supp.

1199 (S.D.N.Y. 1994), aff'd 57 F.3d 146 (2d Cir. 1995) . 14

Connecticut Nat. Bank v. Germain, 503 U.S. 249

Eee as eres so ece ceucaeuruh ose Peete o>

Easley v. Pettibone Michigan Corp., 990 F.2d 905

ae Ce ooo ead eae eean eee eee aes 7

Farm Credit Bank of Texas v. Vallee, 148 B.R. 1021

Ger A EE se nec oa a beat eres dae eas 7

G.W. White & Son, Inc. v. Tripp, 1995 W.L. 65058

Oh 5 SG ee Pee eee mgr tgs Leary 7

Garbe Iron Works, Inc. v. Priester, 99 Ill. 2d 84, 457

Pe CE, grins vhs xo’ S nce ae eee 10, 11

Grotting v. Hudson Shipbuilders, Inc., 85 B.R. 568

Cara Se oe 6, 8, 10, 17

In re Baird, 63 B.R. 60 (Bankr. W.D.Ky. 1986) ...... 6, 10

In re Chemisphere Partners, 90 B.R. 380 (Bankr. N_D.

ee PE le ale ees ts Pen baa e ee ee ate 12

In re Coan, 96 B.R. 828 (Bankr. N.D. Ill. 1989) ..... ; Be

In re Crysen/Montenay Energy Co., 166 B.R. 546

ey ME rr Ge ase Pas eee So a ae 7

In re Deices, 137 B.R. 51 (Bankr. S.D. Cal. 1992)....... 7

In re Design Builders, 18 B.R. 392 (Bankr. D. Idaho

PEE SOT She Oe er OM a eC Cee eee te Care 12

In re Houts, 23 B.R. 705 (Bankr. W.D. Mo. 1982) ..... 12

In re Hunters Run, Ltd Partnership, 875 F.2d 1425

EWES a a bpd a Fce ee eee 8,9

In re Morton, 866 F.2d 561 (2d Cir. 1989) .......... 8,9

In re New England Carpet Co., 26 B.R. 934 (Bankr.

| er ot ae Oe Ut pe eee ee 12

In re Phillips Construction Co., Inc., 579 F.2d 431

CR a Ss sas Kas oaks dees eben MESSE ee at

In re Richards, 994 F.2d 763 (10th Cir. 1993) ......... 10

In re Victoria Grain Co., 45 B.R. 2 (Bankr. Minn. 1984) . 12

In re Warren 192 F. Supp. 801 (W.D. Wash. 1961) ...... 9

In re West, 5 F.3d 423 (9th Cir. 1993) ............... 15

J.T. Industrial Contractors, Inc. v. Hargis Railcar,

Inc., 458 S.E.2d 702 (Ga. Ct. App. 1995) ............. 8

Major Lumber Co. v. G&B Remodeling, Inc., 817

S.W.2d 474 (Mo. Ct. App. 1991) .................. 1]

renee

Mamer v. Apex R.E. & T., 852 F.Supp. 870 (E.D.

Mo. 1994), aff'd 59 F.3d 780 (8th Cir. 1995) ....... 7, 16

McKinney v. Waterman S.S. Corp., 925 F.2d 1 (lst

Ne rawr win bait eae aXe ea ek ace eae 9, 16

Moser v. Universal Engineering Corp., 11 F.3d 720

a6 oon. 4a bg ku. oklg Mina ae eee PME

Motor Vehicle Mfrs. v. N.Y.S. Dept. of Env. Cons.,

er ee ee ee Gan, RUUD 26's v5 kS ees Bales cee eee es 14

Nova Bennett v. U.S. Lines, Inc., F.3d __,

1995 W.L. 497705 (2d Cir., August 22, 1995)

ee ee eee 7,9, 10

O’Lane v. Spinney, 874 P.2d 754 (Sup. Ct. Nev. 1994)... 8

Pettibone Corp. v. Easley, 935 F.2d 120 (7th Cir. 1991) .. 7

Rahim v. McNary, 24 F.3d 440 (2d Cir. 1994) ......... 14

Raikes v. Langford, 701 S.W.2d 142 (Ky.Ct.App. 1986) .. 8

Rogers v. Corrosion Products, Inc., 42 F.3d 292

(Sth Cir. 1995), cert. denied 115 S.Ct. 2614 (1995) . 7, 10-14

Swartzman v. Harlan, 535 So.2d 605 (Fla. App. 2 Dist.

en ee en 8

United States v. Johnston, 268 U.S. 220 (1925)........ 17

Wells v. California Tomato Juice Inc., 118 P.2d

Pr0 CLOe Cl App. 1961)... 0 eee ewe bei a cs 1]

ieee ini

Vil

Wetzler v. F.D.1.C., 38 F.3d 69 (2d Cir. 1994)

Statutes:

11 U.S.C. §§ 101 et seq

11 U.S.C. § 105(a)

11 U.S.C. § 108(c)

11 U.S.C. § 108(c)(1)

11 U.S.C. § 108(c)(2)

11 U.S.C. § 362(a)

11 U.S.C. § 507(a)(7)(A)(ii)

26 U.S.C. § 6503

26 U.S.C. § 6503(h)(2)

28 U.S.C. § 157(b)(5)

45 U.S.C. § 56

46 U.S.C. § 763a

, 10, 15-

Vili

Other Materials:

124 Cong. Rec. H11,109 (daily ed. Sept. 28, 1978) ...... 6

2 Lawrence P. King, Collier on Bankruptcy

SE ers oe Ov oats he les ao 088 6, 17

-_>

H.R. Rep. No. 595, 95th Cong., Ist Sess. 318,

reprinted in 1978 U.S.C.C.A.N. 5787, 6275 ........... 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-300

PETER SKYWARK,

Petitioner,

woo Y_ one

UNITED STATES LINES, INC. AND UNITED STATES LINES

(S.A.) INC. REORGANIZATION TRUST,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

The United States Lines, Inc. and United States Lines

(S.A.) Inc. Reorganization Trust respectfully opposes the

Petition for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Second Circuit in this

Case.

COUNTER-STATEMENT OF THE CASE

United States Lines, Inc. ("Debtor") filed a voluntary

petition for relief under Chapter 11 of Title 11, United States

Code, 11 U.S.C. §§ 101 et seq. (the "Code"), on November 24,

1986, in the Bankruptcy Court. That Court entered a

restraining order pursuant to the Code's automatic stay

provision, 11 U.S.C. § 362(a) (the "Stay"), prohibiting

commencement or continuation of suit on all pre-petition causes

of action against the Debtor (the "Restraining Order", 13-16)'.

Petitioner, Skywark filed a proof of claim, thereby

submitting to the Bankruptcy Court's jurisdiction over his claim

(the “Claim”). (30).

Thereafter, Debtor (and its co-debtors) proposed a plan

of reorganization pursuant to the terms of the Code. Debtor's

First Amended and Restated 'oint Plan of Reorganization (the

"Plan") was approved and confirmed by an order of the

Bankruptcy Court dated May 16, 1989 (the “Confirmation

Order"). (17-20). Under the Plan all of Debtor's assets were

transferred to the United States Lines, Inc. and United States

Lines (S.A.), Inc. Reorganization Trust (hereinafter the "Trust")

as successor-in-interest to both Debtor and its co-debtor, United

States Lines (S.A.), Inc.

Petitioner has omitted to state that the Plan provided a

specific method to resolve pre-petition personal injury and

Numbers in parentheses with nothing more refer to

pages in the Joint Appendix, filed with the United States Court

of Appeals for the Second Circuit. Numbers followed by “a”

refer to pages in the Appendix reprinted in the Petition.

wrongful death claims (collectively "personal injury claims").

Paragraph 8 of the Confirmation Order provided that the

Restraining Order should remain in full force and effect, subject

to extension upon application to the Bankruptcy Court. (18).

The Bankruptcy Court also entered an order dated April 18,

1990 extending the Stay and its Restraining Order and

establishing a claims settlement program for pre-petition

personal injury claims (the "P.I. Order", 21-29).

The P.I. Order also provided:

(g) If a settlement is not reached within

the 60-day review period set forth in paragraph

(e) above, upon notice to the other parties to

th in ither the claimant or the

Reorganization Trustee may move this Court

t in he automatic stay and the

R inin r. The Court may grant said

relief if in its determination the moving party has

complied in good faith with the claims resolution

procedures set forth herein. If the Court

determines otherwise, it may order the Debtors

and claimants to so comply and/or grarit such

other relief as it deems appropriate. Upon the

termination of the automatic stay and the

Restrainin rder, th ersonal_inju

laimants_shall fr ommence an

action against the Reorganization Trust in

accordance with 28 U.S.C. Section 157(b)(5).

[emphasis added]

(26, f(g).

This provision is significant because Petitioner argues

that it would be wrong to assume that if he had moved for relief

from the Stay, such relief would have been granted. (Pet. at

21). The P.I. Order expressly provides for relief from the Stay

after a failed settlement attempt, as occurred. Moreover, after

Skywark’s counsel rejected the Trust’s settlement offer, the

Trust, by letter dated August 16, 1990 asked “when [Skywark]

would move in the U.S. Bankruptcy Court to lift the stay in

order to proceed with litigation of this case... .”. (78).

Petitioner omits mention of this letter. Because Skywark's

counsel did not reply to the Trust or take any other action to

prosecute the Claim for eighteen months, the Trust itself moved

to vacate the Stay. The Trust, by letter to Skywark's counsel

dated January 31, 1992, set a deadline for acceptance of the

settlement offer and stated it would thereafter move to lift the

Stay. (78).

After the settlement deadline passed the Trust moved to

terminate the Stay and Restraining Order in respect of the claims

of Skywark and one other claimant, with notice to their counsel.

The Bankruptcy Court entered a consent order dated August 6,

1992 terminating the Stay (the “Lift Stay Order”, 31-32). The

Lift Stay Order was solely in respect of these two personal

injury claimants, not all creditors, as Petitioner implies. (Pet. at

5). Moreover, the Lift Stay Order recorded that notice of the

Trust's application had been provided to Skywark's counsel and

that no objections had been received from him. (31-32).

REASONS FOR DENYING THE WRIT

A. THE SECOND CIRCUIT’S DECISION

AFFIRMING THE DISTRICT COURT’S

READING OF THE PLAIN LANGUAGE

OF THE CODE WAS NOT ERRONEOUS

AND DOES NOT RAISE AN IMPORTANT,

UNSETTLED ISSUE OF LAW

In Chief Judge Griesa’s opinion for the United States

District Court for the Southern District of New York he

determined that Skywark’s counsel received notice of the Lift

Stay Order on August 17, 1992 but failed to commence the

action until November 12, 1992. (80). He therefore held that

“fu)nder the plain language of 11 U.S.C. § 108(c) plaintiff is

time barred” and that the “statutory language [of § 108(c)] is

perfectly clear and unambiguous.” (82). The District Court's

reading of the “plain language” of § 108(c) was based on the

presumption that “a legislature says in a statute what it means

and means in a statute what it says there [citations omitted].”

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)

The Second Circuit correctly affirmed in a unanimous opinion

(la-4a) .

B. THE SECOND CIRCUIT’S DECISION

CREATES NO CONFLICT WITHIN THE

CIRCUITS

Petitioner asserts that the “central issue in this case is

one upon which the various Courts of Appeal are in conflict.”

(Pet. at 11). This issue is said to be whether applicable statutes

of limitation “are tolled during the pendency of a bankruptcy

stay” by virtue of 11 U.S.C. § 108(c). (Pet. at 10). There is,

however, no Circuit conflict in the application of the plain

language of § 108(c). As the Second Circuit stated in Aslanidis

r v. United States Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993):

The reference in § 108(c)(1) to “suspension” of

time limits clearly does not operate in itself to

stop the running of a statute of limitations;

rather, this language merely incorporates

suspensions of deadlines that are expressly

provided in other federal or state statutes.

Any ambiguity with respect to this “suspension”

reference in § 108(c)(1) is cleared up by

examining the provision’s legislative history.

This history makes evident that § 108(c)(1)

refers to only “special suspensions” that are

found in non-bankruptcy provisions such as the

Internal Revenue Code. 124 Cong. Rec.

H11,109 (daily ed. Sept. 28, 1978); accord 2

Lawrence P. King, Collier on Bankruptcy {

108.04 (15th ed. 1993); See also H.R. Rep. No.

595, 95th Cong., Ist Sess. 318, reprinted in

1978 U.S.C.C.A.N. 5787, 6275.

Our reading of the plain language and

legislative history is buttressed by examining

how other courts have treated this section of the

code. [citing ing V. n Shipb

Inc., 85 B.R. 568, 569 (W.D. Wash. 1988) and

In re Baird, 63 B.R. 60, 62 (Bankr. W.D.Ky.

1986)] [original emphasis]

Aslanidis’ holding in respect of § 108(c) was followed

by the Second Circuit in the decision below and most recently

in Nov v. US. Lines, Inc., F.3d, 1995 WL.

497705 (2d Cir., August 22, 1995) (No. 94-9108, 1654),

petition for reh’g filed. It has also been followed in Rogers v.

Corrosion Products, Inc., 42 F.3d 292, 295 (Sth Cir. 1995),

cert. denied 115 S.Ct. 2614 (1995); In re Crysen/ Montenay

Energy Co., 166 B.R. 546, 555 (S.D.N.Y. 1994) (quoting

Aslanidis re “other federal or state statutes”); In re Confidential

Investigative Consultants, Inc., 178 B.R. 739, 749 (Bankr. N_D.

Ill. 1995) (same); Thurman v. Taforya, 895 P.2d 1050, 1055

(Sup. Ct. Colo. 1995) (en banc) (same). In express agreement

with Aslanidis are Mamer v. Apex R.E. & T., 852 F.Supp. 870,

872 (E.D. Mo. 1994), aff'd, 59 F.3d 780, 783 (8th Cir. 1995)

(Jones Act personal injury claimant time-barred because of

failure to file his lawsuit within the 30 day extension of

§ 108(c)(2) and no circumstances existed to warrant equitable

tolling); G.W. White & Son, Inc. v. Tripp, 1995 W.L. 65058,

*3 (N.D.N.Y. 1995) (“a claimant would have until 30 days after

the bankruptcy stay is lifted to file a claim”, citing Aslanidis).

See also, Easley v. Pettibone Michigan Corp., 990 F.2d 905,

912 (6th Cir. 1993) (products liability suit dismissed during

pendency of Stay was untimely if not refiled within 30 days of

Stay being lifted); Moser v. Universal Engineering Corp., 11

F.3d 720, 722 (7th Cir. 1993) (same); Pettibone Corp. v. Easley,

935 F.2d 120, 121 (7th Cir. 1991) (“Federal law assured

plaintiffs 30 days in which to pick up the baton; if states want to

give plaintiff additional time, that is their business. Some states

do - e.g, Illinois, which tolls its statute of limitations during the

entire bankruptcy proceeding [citation omitted].”); Farm Credit

Bank of Texas v. Vallee, 148 B.R. 1021, 1024 (W.D. La. 1992)

(argument that applicable prescriptive period suspended under

§ 108(c) rejected because of its “plain language” and “[nJothing

has been presented indicating Congressional intention other than

that expressed in the literal language of the statute.”); In re

Deices, 137 B.R. 51, 55 (Bankr. S.D. Cal. 1992) (“no language

in § 108(c) that suspends a statute of limitations from running”,

citing Grotting, supra); J.T. Industrial Contractors, Inc. v.

Hargis Railcar, Inc., 458 S.E.2d 702, 703 (Ga. Ct. App. 1995)

(“if the limitation period set by state law has expired during a

bankruptcy, suit against the debtor must be commenced within

30 days after the termination of the automatic stay.”); O’Lane

v. Spinney, 874 P.2d 754, 756 (Sup. Ct. Nev. 1994)

(“Subsection [108(c)](2) clearly anticipates that nonbankruptcy

limitation periods may expire . . .”); Swartzman v. Harlan, 535

So.2d 605, 608 (Fla. App. 2 Dist. 1988) (“we adopt the better-

reasoned position of Grotting [supra]”), Raikes v. Langford,

701 S.W.2d 142, 145 (Ky.Ct.App. 1986) (“§ 108(c) . .

operates to extend all state statutes of limitations applicable to

the debtor.”)

The only supposedly contrary Circuit decision on the

application of § 108(c) to which Petitioner can point to support

his alleged Circuit conflict is In re Hunters Run, Ltd Partnership,

875 F.2d 1425 (9th Cir. 1989). The Ninth Circuit decided that

the eight month period to enforce mechanic’s liens under

Washington state law was “applicable non-bankruptcy law” that

“fixes a period for commencing a civil action . . .” referred to in

§ 108(c). Id. at 1427. The Court held that § 108(c) “applies to

toll the enforcement period of [the state statute].” 875 F.2d at

1428. It concluded:

. . Our approach here corresponds with that

recently announced by the Second Circuit

addressing “the question whether section 108(c)

tolls the expiration of periods governing the life

of statutory liens.” In re Morton, 866 F.2d 561,

566 (2d Cir. 1989). In that case, the Second

Circuit held that section 108(c) operated to toll

New York’s ten-year period governing judgment

liens on real property. Id. In so doing, the

Second Circuit expressly rejected the approach

of the bankruptcy court’s opinion in this case.

Id. As do we, the In re Morton court based its

conclusion on statutory language. Id In

addition, the Second Circuit demonstrated

persuasively that adherence to congressional

purpose also required its result. See id. at 566-

67 (tolling ensures that debtor cannot take

“unfair advantage” simply by filing bankruptcy

petition and allowing the limitations period to

run). Cf. hilli

579 F.2d 431, 432-33 (7th Cir. 1978) (similar

position taken by Seventh Circuit but noting that

facts of In re Warren [192 F. Supp. 801 (W_D.

Wash. 1961)] “arguably distinguishable”).

875 F.2d at 1429.

It is significant that Aslanidis specifically distinguished

Morton, stating that “the holding in Morton is inapposite to the

instant dispute, and Aslanidis may take no comfort from it.”

7 F.3d at 1074. There is, therefore, no internal conflict in the

Second Circuit as suggested by Petitioner. Equally, there is no

conflict between the Second Circuit’s decisions in Aslanidis,

Bennett and the decision below, and the Ninth Circuit’s decision

in Hunters Run, which followed Morton.

Petitioner also cites McKinney v. Waterman S.S. Corp.,

925 F.2d 1 (ist Cir. 1991). (Pet. at 9). However, § 108(c) is

nowhere mentioned in that case and its statements about tolling

are dicta. See Aslanidis, 7 F.3d at 1074. (“McKinney’s

statements about tolling are dicta. . .”). Apart from McKinney

and In re Hunters Run, the only other Circuit Court decision

cited by Skywark for the proposition that the Circuits are in

conflict is In re Richards, 994 F.2d 763, 765 (10th Cir. 1993).

(Pet. at 10).

Richards concerned a tax assessment period under 11

U.S.C. § 507(a)(7)(A)(ii) which the Tenth Circuit held was

suspended during the first of two successive bankruptcies under

11 U.S.C. § 105(a). 994 F.2d at 765. The Court made specific

reference to those cases where another federal statute, 26

U.S.C. § 6503, suspended the tax collection period, but the

suspension it applied was not by virtue of § 108(c). 994 F.2d at

766.

None of the above three decisions provides any basis for

a good faith argument that there is a Circuit conflict.

Petitioner argues, however, that certiorari should be

granted because there is also a conflict at the state level between

“the Second and Fifth Circuits and the ‘state court of last resort’

in Illinois [citing Garbe Iron Works, Inc. v. Priester, 99 Ill. 2d

84, 457 N.E.2d 422 (1983)].” (Pet. at 11). Garbe is said to be

the “leading case holding contrary to Aslanidis”. (Pet. at 8).

Garbe Iron held that the filing of a bankruptcy petition,

and the imposition of the Stay, stopped the applicable statute of

limitations from running. This state court case, which predates

the federal precedents, including Aslanidis, was expressly

disapproved by Grotting, 85 B.R. at 570. (“[Garbe]. . . was

decided by an Illinois state court which read into [§] 108(c)(1)

an alleged Congressional intention to include bankruptcy

suspensions such as the automatic stay. The better reasoned

decision... is. . . In re Baird [supra]... .”) Aslanidis

endorsed both Grotting and Baird. 7 F.3d at 1093.

Moreover, Rogers, squarely rejected both Garbe Iron

and Major Lumber Co. v. G&B Remodeling, Inc., 817 S.W.2d

474 (Mo. Ct. App. 1991), upon which Skywark also relies.

(Pet. at 9). In Rogers, plaintiff alleged that he had suffered a

pre-petition spinal injury at the debtor's facility. His wife also

claimed damages for loss of consortium. The applicable one year

statute of limitations expired during the pendency of the

bankruptcy case and the Stay. The plaintiffs filed their

complaint some three months after the debtor's case had been

dismissed. The District Court, citing Aslanidis, dismissed

plaintiffs’ action as time-barred. The Fifth Circuit affirmed,

agreeing that the Rogers had ““‘slept on [their] rights’.” 42 F.3d

at 295.

On appeal, however, the Rogers argued for tolling based

on the same state court decisions, Garbe Iron and Major

Lumber and Wells v. California Tomato Juice Inc., 118 P.2d

916 (Cal. Ct.App. 1941), relied upon by Aslanidis and now

repeated by Skywark. 42 F.3d at 297 n. 7. The Fifth Circuit

rejected the tolling argument, stating:

We base our decision on the plain words of the

statute and find that § 108(c) does not create a

separate tolling provision [citation omitted].

The statute plainly states that for the time period

to be suspended, other federal or state law must

mandate it and then be incorporated through §

108(c). Otherwise, a party must file suit within

the thirty-day grace period after the end of the

stay. We need not and do not reach the

legislative history and policy arguments.

42 F.3d at 297.

Skywark also cites six Bankruptcy Court decisions to

support his conclusion that there is a conflict.? (Pet. at 10).

This is not the case. As noted by Rogers, in distinguishing

Victoria Grain, Houts and Design Builders, “they stand for the

more general proposition that § 108(c) applies to the time limits

of lien enforcement (statutes of duration) as well as the more

generally applicable time limits of statutes of limitation.” 42

F.3d at 296, n.4. Rogers also stated, in distinguishing Coan and

Chemisphere, that “other courts have reached the same result as

did the Second Circuit [in Aslanidis].” 42 F.3d at 297.

Although Coan is cited by Petitioner for the proposition that

“the applicable statute of limitations is tolled during the

pendency of a bankruptcy stay”, it held exactly the opposite.

(Pet. at 10). Coan held that “[i]n these circumstances, § 108(c)

extends the period for enforcing the Movants’ lien until 30 days

after the termination of the automatic stay.” 96 B.R. at 833

(emphasis added).

The sixth case cited by Petitioner, New England Carpet,

deals with the Stay’s effect on the creation as opposed to

perfection of liens, and its relation to the creation of a secured

or unsecured claim under Vermont law. 26 B.R. at 939. The

case does not so much as mention 11 U.S.C. § 108. The

Second Circuit’s decisions are, in any event, more authoritative

precedent.

* In re Chemisphere Partners, 90 B.R. 380, 382 (Bankr.

NLD. Ill. 1988); In re Coan, 96 B.R. 828, 832 (Bankr. ND. Ill.

1989); In re Design Builders, 18 B.R. 392, 394-95 (Bankr. D

Idaho 1981); In re Houts, 23 B.R. 705, 707 (Bankr. W.D. Mo.

1982); og ye 26 B.R. 934, 939

(Bankr. Vt. 1983); In re Victoria Grain Co., 45 B.R. 2, 6

(Bankr. Minn. 1984).

C. THE SECOND CIRCUIT DID NOT

ENGAGE IN ANY EXAMINATION OF

LEGISLATIVE HISTORY IN BREACH OF

RULES OF STATUTORY

CONSTRUCTION

Petitioner asserts that the decision below is in conflict

with this Court’s decisions regarding rules of statutory

construction because it improperly reviews legislative history,

citing Connecticut Nat. Bank v. Germain, supra. (Pet. at 13).

The decision below does not mention any legislative history

whatsoever. It does, however, cite Aslanidis. It was Aslanidis,

not the decision below, that reviewed legislative history to

conclude:

Our reading of the plain language and legislative

history is buttressed by examining how other

courts have treated this section of the [C]ode

[citations omitted; emphasis added]

7 F.3d at 1073.

Aslanidis’ reading of § 108(c) was not therefore based

solely on an allegedly “prohibited” reading of legislative history,

but also on the “plain language” of the statute and other

authority. Moreover, Rogers noted:

While the Second Circuit’s reading of § 108(c)

in Aslanidis could have been based solely upon

the plain language of the statute, the court

nevertheless also examined the legislative history

and found that it supported its interpretation.

[emphasis added]

42 F.3d at 296, n. 4.

For its part, however, the Fifth Circuit noted in Rogers:

The statute plainly states that for the time period

to be suspended, other federal or state law must

mandate it and then be incorporated through §

108(c) . . . We need not and do not reach the

legislative history and policy arguments.

42 F.3d at 297.

The decision below cannot be attacked because of its

citation of Aslanidis which, in turn, is attacked because it

allegedly improperly reviewed § 108(c)’s legislative history.

(Pet. at 12-15). The plain language of the statute was also

relied upon both by Aslanidis and by the decision below in

affirming the District Court’s reading of the “plain language of

11 U.S.C. § 108(c)”. (8a). Indeed, the infirmity of Petitioner’s

argument is demonstrated by the fact that the Second Circuit has

cited Aslanidis on three subsequent occasions for its proposition

“a court should presume that a statute says what it means.” 7

F.3d at 1072. See, Wetzler v. F.D.LC., 38 F.3d 69, 73 (2d Cir.

1994); Rahim v. McNary, 24 F.3d 440, 443 (2d Cir. 1994);

Motor Vehicle Mfrs. v. N.Y.S. Dept. of Env. Cons., 17 F.3d

521, 531 (2d Cir. 1994); see also Banque Arabe v. Maryland

Nat. Bank, 850 F. Supp. 1199, 1209 (S.D.N.Y. 1994), aff'd 57

F.3d 146 (2d Cir. 1995).

D. THE “APPLICABLE NONBANKRUPTCY

LAW” FIXING THE THREE YEAR

PERIOD FOR MARITIME TORT CLAIMS

DOES NOT INCLUDE SUSPENSION BY

EQUITABLE TOLLING

Petitioner admits that the “applicable nonbankruptcy law

. . . fix[ing] a period for commencing or continuing a civil

action” in respect of the Claim is 45 U.S.C. § 56 and 46 U.S.C.

§ 763a. (Pet. at 7). As Petitioner states, “each of the applicable

limitations periods is three years from the date the claim

accrued.” (Pet. at 5). Neither of those applicable statutes of

limitations provides for any “suspension”. The language “the

end of such period, including any suspension of such period” in

§ 108(c)(1) must be read in the context of the preceding

language in subsection (c) that refers to “applicable non-

bankruptcy law . . . [that] fixes a period”. Section 6503(h)(2)

of the Internal Revenue Code, 26 U.S.C. § 6503(h)(2), is

precisely such a “nonbankruptcy” statute specifically providing

for a suspension. See In re West, 5 F.3d 423, 427 n.9 (9th Cir.

1993) (collecting cases).

Petitioner’s argument that “applicable nonbankruptcy

law . . . [that] fixes a period” means not only the two applicable

maritime statutes of limitation but also common law principles

of equitable tolling would render § 108(c) wholly nugatory. If,

as Petitioner erroneously asserts, the Stay gives rise to equitable

tolling of statutes of limitation which, in turn, is the “applicable

nonbankruptcy law” referred to by § 108(c), then statutes of

limitation would never expire during the Stay and would never

have to be extended by 30 days, as provided in § 108(c)(2).

As Aslanidis stated:

The reference in § 108(c)(1) to “suspension” of

time limits clearly does not operate in itself to

stop the running of a statute of limitations;

rather this language merely incorporates

suspensions of deadlines that are expressly

provided in other federal or state statutes.

[original emphasis]

7 F.3d at 1073.

Aslanidis spetificaly rejected the identical tolling

— made by Petitioner. 7 F.3d at 1074. Likewise in

Mamer v. Apex R.E. & T., 852 F.Supp. at 872, the District

eee hel in the cofitext raney err pgm p a Jones Act personal injury claim

that “ Bf ho common law or statutory authority . . . for the

oli. of th te of limitations during the period in which

plaintif aims are subject to the bankruptcy stay.” The

Eighth Circuit affirmed. Mamer, supra. The decision below

likewise concluded “maritime law therefore does not provide for

tolling while the automatic stay is in effect.” (3a). None of the

cases cited by Petitioner support his argument that maritime tort

statutes of limitation are equitably tolled merely by the

imposition of the Stay.

Petitioner’s argument is, in essence, a factual one: that

grounds existed for equitable tolling in addition to the Stay. He

states that the “only appellate court to have spoken on this issue

in the context of a Jones Act proceeding was McKinney . . .”.

(Pet. at 21). Whether or not Petitioner’s counsel mistakenly

relied on McKinney, which does not mention § i108(c), this

provides no grounds for tolling. Aslanidis made clear in

declining to follow McKinney, that the First Circuit’s

“statements about tolling are dicta.” 7 F.3d at 1074. Moreover,

the language and, if any guide were needed, the legislative

history of § 108(c) were plain to read. As noted by Collier “the

1898 Act dealt in terms of suspension of a period of limitations,

rather than an extension of a period as it is worded under the

Code.” Id., J 108.01 at p. 108-3. Grotting, a Jones Act case

dealing expressly with § 108(c), was also available to enlighten

Skywark’s former counsel, if need be.

Petitioner, as a second alleged ground for equitable

tolling, attempts to discredit the Second Circuit’s conclusion

that “tolling rationale does not apply in the bankruptcy area

because plaintiffs have advance knowledge of when claims are

to expire and may act to protect themselves [citations omitted].”

7 F.3d at 1074. Petitioner asserts that the Second Circuit was

wrong to assume that if he had requested relief from the Stay

then that relief would have been granted. (Pet. at 21). That

argument ignores the fact that the P.I. Order specificzliy

provided for such relief and that the Trust had asked Petitioner

when he would obtain it. (78). Moreover, under Southern

District of New York Local Bankruptcy Rule 79. Petitioner

could have filed an action in rem against the M/V AMERICAN

GEORGIA, on which he served at the time of his alleged injury,

at any time irrespective of the Stay and Restraining Order.

Not only are common law principles of equitable tolling

not the “applicable nonbankruptcy law” for the “suspension”

referred to in § 108(c)(1), but the District Court’s factual

finding, affirmed by the Second Circuit, that no grounds existed

for equitable tolling was correct. Petitioner should, however, be

aware that findings of fact do not belong before this Court.

United States v. Johnston, 268 U.S. 220, 227 (1925).

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,