Opposition Brief — California-Hawaiian Fund, Inc. v. Honolulu Federal Savings & Loan Ass'n

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No. 91-1693 BAY 22 (a9

IN THE SUPREME COURT OF THE UNITED ST. ATER booed Sool |

OCTOBER TERM, 1991

CALIFORNIA-HAWAIIAN FUND, INC., TRITON

CONTINENTAL PROPERTIES JOINT VENTURE,

HUGO VON PLATEN-LUDER, MICHAEL B.

MONTGOMERY, RONALD D. McCOMMON,

and SHIRLEY VON PLATEN-LUDER,

Petitioners,

VS.

HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION, TRITON CONTINENTAL PROPERTIES

CORPORATION, ALVIN K.H. CHEE, JAMES ADRIAN

ADAMS, CHEE-HIRONAKA, SAM S. HIRONAKA,

FEDERAL DEPOSIT INSURANCE CORPORATION,

OFFICE OF THRIFT SUPERVISION, and

RESOLUTION TRUST CORPORATION

meipenqent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

LORRAINE H. AKIBA

PATRICIA J. MCHENRY

Cades Schutte Fleming & Wright

1000 Bishop Street

| 2th Floor

Honolulu, Hawai 96813

(808) 521-9200

Attorneys for Respondent

QUESTIONS PRESENTED

1. Whether the decision of the Court of Appeals is in

conflict with the decision of another federal court of appeals

on the same matter?

2. Whether the decision of the Court of Appeals involves

a significant issue of federal law which constitutes a

substantial violation of Petitioners’ statutory and

constitutional rights?

3. Whether certiorari review of a Court of Appeals order

dismissing an appeal for lack of appellate jurisdiction is

proper where 28 U.S.C. § 1447(d) specifically provides that

no appellate review is allowed for remand orders based on

lack of subject matter jurisdiction?

4. Whether certiorari review is appropriate under the

collateral order doctrine for a Court of Appeals decision

dismissing an appeal from an order granting removal of a

fourth-party action to the federal court from the state court?

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TABLE OF CONTENTS

CQnemtenes FUOGUIONG,. «.si0-sk aban cok een oes ieeees i

Fe EC. 3 do iv ove ens are il

RB PT err tr re ee lil

Rae OE FIG ec hon aoe Se asa V

. CITATIONS TO OPINIONS BELOW ............ 2

S LAR RAEI A GE BUUES GPA os Gai cv ae cinseucves 3

SR: SR AE a oso oo ca onan ce weaeees 3

2.2 PrOcemiial BOCKMTOURG. .. 2. 6c ec ccessccees 4

SUMMARY OF ARGUMENT .................. 6

AAPL EEE 60.18 ba 60d Chesdd Ob Thkeea tee 7

4.1 This Court Reviews the Ninth Circuit’s Decision

to Dismiss the First Appeal De Novo ......... 7

4.2 The District Court’s Remand Order Was Solely

Based on Its Determination That It Lacked

Subject Matter Jurisdiction and Is Not

Reviewable on Appeal Under 28 U.S.C.

Bo. | peer rer rer: er ers ere eee 8

4.3 The Ninth Circuit Court of Appeals’ Decision

to Dismiss the Appeal Does Not Conflict with

the Decisions of Other Courts of Appeal or

EG Tee Trey rer re ee 10

4.4 Section 1447(d) of Title 28 Does Not Violate

Petitioners’ Right to Equal Protection Under

the Fifth Amendment of the United States

PETE OT eT ee re ere ee Eee 1]

4.5. The Order Directing Clerk to Issue Writ of

Certiorari Is Not a Final Appealable Order... . . 14

CLC AAI 66s 00 oes den Pea Pee 15

TABLE OF AUTHORITIES

1. Cases

Argentine Republic v. Amerada Hess,

EN ec aces as kv eee es sesessevecs 13

Bankers’ Life & Casualty Co. v. Crenshaw,

re 1]

_ City of Cleburne v. Cleburne Living Center,

rr 12

Clorox Co. v. United States District Court,

hyn a 5 ) a Y

Finley v. United States,

| rr 13

Firestone Tire & Rubber Co. v. Risjord,

EE yess eee veesbobaensesessees 14

Hellon & Associates, Inc. v. Phoenix Resort Corp.,

ee 7) 8

Hodel v. Indiana,

ncaa wee susscecvecuees 12

Jones v. Barnes,

| 1]

O'Halloran v. University of Washington,

ee te) | rr 10

Osborn v. Bank of United States,

re 13

Patient Care, Inc. v. Freeman,

fy ON a OE) 0 10

Pelleport Investors, Inc. v. Budco Quality Theatres, Inc.,

ee OU GLO, BED sg ok cance enccetacsscs )

iV

TABLE OF AUTHORITIES

Stewart Organization v. Ricoh Corp.,

er ee a we aces baie ei aee 14

Thermtron Products, Inc. v. Hermansdorfer,

ee ee Doak oc ba ae ee whee ees 8,9, 10, 12

United States v. Rice,

Ee ol ae 12

Verlinden B.V. v. Central Bank of Nigeria,

tga Sk ok bes 13

Volvo Corp. v. Schwarzer,

ne es vy dele ORR de eee Aw ee 8,9

2. Miscellaneous

eR eS Cae eka awh eu cuas 13

Se ee ED ns sc so ope eins one eed ewes eee 5

Eee OUR. ccs cdtes sev cocnbaceede 1

ek ono hk vA SUR ee sd cence eenes 6, 14

tt ON ns vx nes cccaseeandddaccdstves 4,5

oo yas bw cbo un euaeabiwsnx varia 4,5

ES ss oe ch cb wan Oub and Mb be keE OER 4,5

ee Oe TD ok ss o'o-00.4 6000400 en eeu 4,5, 8,9, 12

Be Ses PUD fg kv vaca bnsecenadvas 6, 7, 8,9, 11, 12

Rules of the Supreme Court of the United States

PPE eee Tee TEN CLE ore eT eT ere 10

Vv

TABLE OF APPENDICES

APPENDIX A: 12 U.S.C.S. § 1819 (1992) United States

Code Annotated*

*A copy of this statute is provided only because Petitioners attached an incorrect

copy of 12 U.S.C.S. § 1819 (1992) U.S.C.A. as Appendix A-105 to the Petition

for Writ of Certiorari.

No. 91-1693

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

CALIFORNIA-HAWAIIAN FUND, INC., TRITON

CONTINENTAL PROPERTIES JOINT VENTURE.

HUGO VON PLATEN-LUDER, MICHAEL B.

MONTGOMERY, RONALD D. McCOMMON,

and SHIRLEY VON PLATEN-LUDER,

Petitioners,

VS.

HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION, TRITON CONTINENTAL PROPERTIES

CORPORATION, ALVIN K.H. CHEE, JAMES ADRIAN

ADAMS, CHEE-HIRONAKA, SAM S. HIRONAKA.

FEDERAL DEPOSIT INSURANCE CORPORATION,

OFFICE OF THRIFT SUPERVISION, and

RESOLUTION TRUST CORPORATION

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Respondent HONOLULU FEDERAL SAVINGS AND

LOAN ASSOCIATION respectfully requests that this Court

deny the Petition for Writ of Certiorari filed by Petitioners

CALIFORNIA-HAWAIIAN FUND, INC., TRITON

CONTINENTAL PROPERTIES JOINT VENTURE, HUGO

VON PLATEN-LUDER, MICHAEL B. MONTGOMERY,

RONALD D. McCOMMON, and SHIRLEY VON PLATEN-

LUDER (collectively “Petitioners”). The Petition seeks

certiorari review of the Ninth Circuit Court of Appeals

decision dismissing two separate appeals: 1) the appeal filed

August 1, 1991 from the Order Granting Plaintiff’s Motion to

Remand and for Sanctions, CA No. 91-16409 (“the first

appeal”) and 2) the appeal filed September 9, 1991 from the

Order Directing Clerk to Issue Writ of Certiorari, CA No. 91-

16524 (“the second appeal”). The two appeals were never

consolidated. Respondent HONOLULU FEDERAL

SAVINGS AND LOAN ASSOCIATION is not a party to the

fourth-party action, which is the subject of the second appeal.

Accordingly, this brief will primarily address issues regarding

the requested certiorari review as they relate to the first

appeal.

1. CITATIONS TO OPINIONS BELOW

An Order Granting Plaintiffs’ Motion to Remand and for

Sanctions and Denying Fourth-Party Defendant’s Motion to

Dismiss Fourth-Party Complaint was entered by the United

States District Court for the District of Hawaii on July 2, 1991

in Honolulu Federal Savings and Loan Association v. Triton

Continental Properties Joint Venture, et al., Civil No. 91-

00050 DAE, which was not published. A copy is attached to

the Petition For Writ of Certiorari as Appendix A-7.

An Order Directing Clerk to Issue Writ of Certiorari was

entered by the United States District Court for the District of

Hawaii on August 9, 1991, in Honolulu Federal Savings and

Loan Association vy. Triton Continental Properties Joint

Venture, et al., Civil No. 91-00050 DAE, which was not

published. A copy is attached to the Petition For Writ of

Certiorari as Appendix A-25.

An Order was entered by the United States Court of

Appeals for the Ninth Circuit 0:1. December 4, 1991

dismissing appeals CA No. 91-16409 and No. 91-16524,

which was not published. A copy is attached to the Petition

For Writ of Certiorari as Appendix A-1.

An Order was entered by the United States Court of

Appeals for the Ninth Circuit on January 21, 1992 denying

petition for rehearing and suggestion for rehearing en banc in

appeals CA Nos. 91-16409 and 91-16524, which was not

published. A copy is attached to the Petition For Writ of

Certiorari as Appendix A-3.

A Judgment was entered on February 20, 1992 by the

United States Court of Appeals for the Ninth Circuit in

appeals CA Nos. 91-16409 and 91-16524 dismissing the

appeals, which has not yet been published. A copy is attached

to the Petition For Writ of Certiorari as Appendix A-S.

2. STATEMENT OF THE CASE

2.1 Statement of Facts

On October 15, 1986, Respondent Honolulu Federal

Savings and Loan Association (“Honfed”) filed a lawsuit

against Petitioners in the First Circuit Court of the State of

Hawaii on exclusively state law claims for breach of contract.

In 1985, Petitioners entered into a Purchase Agreement for

commercial property, which had a specified closing deadline

of December 30, 1985. Because of their inability to obtain

financing and close the purchase transaction by the required

deadline, Petitioners requested several extensions of the

closing date. In exchange for Honfed’s consent to these

extensions, Petitioners agreed to pay Honfed $50,000 per

month in interest and $12,596.52 in carrying costs.

Notwithstanding Honfed’s extension of the deadline for over

nine months, the purchase was not consummated because of

Petitioners’ failure to obtain financing. Petitioners also

neglected to pay the extension fees for two months and the

carrying costs for one month as required under the extension

agreements. HonFed’s suit sought to recover these sums.

2.2 Procedural Background

Contrary to Petitioners’ representations to this Court, this

case was not in its “early pleadings stage” when Petitioner

Shirley Von Platen-Luder (“Von Platen-Luder’’) filed her

Notice of Removal on January 23, 1991. The lawsuit had been

pending in state court for four and a half years since October

1986. Discovery had been conducted, partial summary

judgment had been granted in favor of HonFed, and a third-

party action had been pending since November 6, 1989. Von

Platen-Luder was a third-party cross-claim defendant. The

action was improperly removed by Von Platen-Luder under

28 U.S.C. § 1441(b).

HonFed filed a Motion to Remand and for Sanctions on

February 22, 1991, requesting remand of the case under 28

U.S.C. § 1447(c) on the ground that the United States District

Court for the District of Hawaii lacked subject matter

jurisdiction over the removed case. A hearing on the Motion

was held before Judge David A. Ezra on July 1, 1991.

HonFed argued that the District Court did not have

“original jurisdiction” under 28 U.S.C. § 1441(b), the statute

cited by Petitioner Von Platen-Luder in her Notice of

Removal. HonFed further argued that jurisdiction did not

exist under 28 U.S.C. § 1441(c) because the federal claims

asserted in the third-party counterclaim and cross-claim were

not separate and independent in that they all related to

Petitioners’ efforts to purchase the commercial property from

HonFed. HonFed also argued that Von Platen-Luder could not

remove pursuant to 28 U.S.C. § 1442(a) because she was not

a party to the fourth-party action against the federal agencies

named therein—the Federal Deposit Insurance Corporation

(“FDIC”), Office of Thrift Supervision and Resolution Trust

Corporation.

On July 2, 1991, the District Court issued the Order

Granting Plaintiff’s Motion to Remand and For Fourth Party

Defendants’ Motion to Dismiss Fourth-Party Compiaint and

5

remanded the case to the state court.' The District Court

determined that it did not have jurisdiction over the case. The

court reasoned that 1) third-party claims can be removed only

if they are separate and independent from nonremovable state

claims raised in a complaint and 2) that the claims in the

third-party cross-claim against Petitioner Von Platen-Luder all

arose from the same subject matter as the claims in HonFed’s

Complaint, namely the Purchase Agreement for the

commercial property and its extension, and thus that they

were not separate and independent. The Court cited direct

precedent in the District of Hawaii which holds that third

party defendants are not entitled to remove when the third

party complaint arises from the same occurrence as the

original complaint. Von Platen-Luder could not remove under

either 28 U.S.C. §§ 1441(b) or 1441(c),

The Court further held that Von Platen-Luder could not

remove under 28 U.S.C. § 1442(a) or 12 U.S.C. § 1819(b)(2),

which gives the FDIC the right to remove, on the ground that

the FDIC, the Office of Thrift Supervision, and the Resolution

Trust Corporation were named only in the fourth-party

complaint. To remove under either statute, the removing party

must be a party to the same complaint upon which removal is

based. Von Platen-Luder based her removal on the third-party

complaint. Von Platen-Luder was not a party to the fourth-

party action.

The Court also granted an award of attorneys’ fees and

costs to HonFed under 28 U.S.C. § 1447(c).° The

‘It should be noted that HonFed had not sought remand on abstention grounds

and, as the remand order shows, the District Court did not remand because it

decided it should abstain in this case. Petitioners’ representation to the contrary is

simply wrong.

*Although Petitioners represent to this Court that the District Court considered

only 28 U.S.C. § 1441(b), the removal statute cited in the Notice of Removal, this

representation is incorrect, as a review of the remand order clearly shows.

‘Following the remand, the state court proceeded with the hearings on the

dispositive motions that HonFed had filed prior to the removal. The state court

granted summary judgment in favor of HonFed and thereby resolved all claims

between HonFed and Petitioners. The state court judgment is now on appeal by

Petitioners to the Hawaii Supreme Court.

determination of the amount of the sanction award was

referred to the magistrate.

On August |, 1991, before the magistrate entered his order

regarding the amount of that award, Petitioner Von Platen-

Luder filed a Notice of Appeal of the remand order and

sanction award to the Ninth Circuit Court of Appeals, CA No.

91-16409. On September 17, 1991, HonFed filed a Motion to

Dismiss Appeal in CA No. 91-16409 based on 28 U.S.C.

§ 1447(d), which bars appellate review of remand orders. On

December 4, 1991, the Ninth Circuit granted the Motion to

Dismiss.

The FDIC filed a Petition for Removal, which only

removed the fourth-party action entitled, “Hugo Von Platen-

Luder, Fourth Party Plaintiff v. Federal Deposit !.isurance

Corporation, et al, a part of action No. 86-3865” to the United

States District Court for the District of Hawaii on July 29,

1991. The District Court called a status conference on August

6, 1991 to confirm that the FDIC sought only to remove the

fourth-party action and not the entire case. The District Court

issued an Order Directing Clerk to Issue Writ of Certiorari

(the “removal order’’), which directed the state court clerk to

certify and transmit the records in the fourth-party action and

directed the state court to proceed no further with the fourth-

party action. The fourth-party action thereafter continued to

proceed in District Court.

It should be noted that Petitioners refer to the removal order

as the “second remand order.” However, the order is not a

remand order and did not remand any of the case to state

court. On September 9, 1991, Petitioners filed a second

Notice of Appeal from the removal order, CA No. 91-16524.

The Ninth Circuit also dismissed CA No. 91-16524 pursuant

to 28 U.S.C. § 1291, which confines the jurisdiction of courts

of appeal to “final decisions.”

3. SUMMARY OF ARGUMENT -

Petitioners’ cite two reasons for certiorari review: (1) the

Court of Appeals decision raises significant issues of federal

law, which constitute substantive violations of Petitioners’

statutory and constitutional rights; and (2) the decision also

conflicts with decisions of the Supreme Court and other

circuit courts. However, Petitioners have not demonstrated

such grounds from the decision and record below. The Ninth

Circuit Court of Appeals has not ruled in any manner adverse

to or in conflict with the authorities cited by Petitioners.

The Ninth Circuit Court properly dismissed the first appeal

because the District Court remanded the case based on its

determination that it lacked subject matter jurisdiction under

the removal statutes and the appellate court lacks appellate

jurisdiction over orders remanding cases for lack of subject

matter jurisdiction under 28 U.S.C. § 1447(d). The opinions

from the circuit courts cited by Petitioners do not conflict on

this issue.

With respect to the second appeal, the Order Directing

Clerk to Issue Writ of Certiorari is not appealable under the

collateral order doctrine. The fourth-party action in which the

removal order was entered is still proceeding in the District

Court. The removal order can be appropriately appealed when

a final judgment is entered in that action.

Although Petitioners seek to challenge 28 U.S.C. § 1447(d)

on equal protection grounds, Congress’ prohibition of appeals

from remand orders, except in very limited circumstances, is

rationally related to the government’s interest in preventing

the federal removal provisions from being used to delay state

court actions.

4. ARGUMENT

4.1 This Court Reviews the Ninth Circuit's Decision to

Dismiss the First Appeal De Novo.

Petitioners erroneously contend that this Court must accept

as true all facts as alleged by Petitioners. There is no authority

to support Petitioners’ argument that this Court must accept

and give deference to all facts alleged by Petitioners. The

instant petition for certiorari review does not involve a

dismissal by the Ninth Circuit based on the substantive merits

or substantive law grounds but rather involves a dismissal

based on lack of jurisdiction. The request for certiorari review

involves the statutory construction of 28 U.S.C. § 1447(d)

and, therefore, is reviewed de novo. Moreover, if the statutory

language is clear, this Court need look no further than that

language itself in determining the meaning of the statute. See

Hellon & Associates, Inc. v. Phoenix Resort Corp., 958 F.2d

295, 297 (9th Cir. 1992).

4.2 The District Court’s Remand Order Was Solely

Based on Its Determination That It Lacked Subject Matter

Jurisdiction and Is Not Reviewable on Appeal Under 28

U.S.C. § 1447(d).

This petition, as it relates to the first appeal, arises from the

appeal to the Ninth Circuit of a remand order that is not

subject to appeal. The District Court remanded because it

determined that it did not have subject matter jurisdiction over

the case under the removal statutes. 28 U.S.C. § 1447(d)

explicitly bars appellate review of all remand orders that are

based on the determination that the district court lacks subject

matter jurisdiction. The Ninth Circuit properly dismissed

Petitioner’s appeal from the remand order because it did not

have jurisdiction over the appeal.

28 U.S.C. § 1447(d) provides that “an order remanding a

case to the State court from which it was removed is not

reviewable on appeal or otherwise... .” In Therimtron

Products, Inc. vy. Hermansdorfer, 423 U.S. 336 (1976), this

Court re-affirmed that 28 U.S.C. § 1447(d) bars a challenge in

the appellate courts to any remand orders pursuant to 28

U.S.C. § 1447(c), which provides for the remand of cases

over which the district court lacks subject matter jurisdiction.

In Thermtron, this Court further held that appellate review

would lie only if the district court remanded for reasons

wholly different from those authorized by 28 U.S.C.

§ 1447(c), such as congestion in the district court’s docket.

This Court has not varied from the rule it articulated in

Thermtron. For example, in Volvo Corp. v. Schwarzer, 429

U.S. 1331 (1976), Chief Justice Rehnquist denied an

application for a stay of a remand order that had been based

on the district court’s conclusion that it did not have

jurisdiciton of the action. Chief Justice Rehnquist observed

that Thermtron did not help the petitioner in Volvo because the

district court had clearly ' ssed the remand order on a ground

stated in 28 U.S.C. § 1447(c)—lack of subject matter

jurisdiction—and that review of the order was therefore

“presumptively barred by the operation of 28 U.S.C.

§ 1447(d)....” Volvo, 429 U.S. at 1332-33.

Thermtron, similarly, does not support Petitioners here. The

District Court specifically held that none of the removal

Statutes upon which Petitioner Von Platen-Luder relied for

removal jurisdiction (including removal statutes that she had

not cited in her Notice of Removal but had raised in her

arguments to the District Court) entitled her to remove. The

remand order was solely based upon the District Court’s lack

of subject matter jurisdiction. Therefore, even if the District

Court’s decision was erroneous, it is not subject to appellate

review.

Pelleport Investors, Inc. v. Budco Quality Theatres, Inc..,

741 F.2d 273 (9th Cir. 1984), and Clorox Co. v. United States

District Court, 779 F.2d 517 (9th Cir. 1985). cited by

Petitioners, follow the authority and rule established under

Thermtron. These decisions have consistently held that,

although a district court’s decision to remand based upon lack

of subject matter jurisdiction is not reviewable on appeal, a

decision to remand based on “a substantive decision on the

merits apart from any jurisdictional decision” is subject to

review. Pelleport, 741 F.2d at 276.

Petitioners erroneously seek to characterize the remand

order in this case as falling under this exception to the bar of

appellate review. Petitioners seek to avoid the direct holding

of the Thermtron line of cases by arguing that any rulings

involving “federal law” fall under the foregoing exception.

The critical distinction for the exception to the bar on

appellate review to apply is that the district court’s decision

must be on matters of substantive law apart from juris-

dictional questions or issues. Here, the District Court did not

make any decision on the substantive merits of the dispute

10

between the parties. Its decision to remand was grounded

solely on the lack of subject matter jurisdiction.

4.3. The Ninth Circuit Court of Appeals’ Decision to

Dismiss the Appeal Does Not Conflict with the Decisions of

Other Courts of Appeal or the Supreme Court.

Rule 10 of the Rules of the Supreme Court of the United

States provides: “A review on writ of certiorari is not a matter

of right, but of judicial discretion. A petition for writ of

certiorari will be granted only when there are special and

important reasons therefor.” Rule 10 sets forth the character of

reasons for a grant of certiorari. Petitioners contend that the

decision in this case conflicts with other decisions addressing

the same issue in this circuit. Petitioners cite decisions from

other federal courts but fail to explain how the Court of

Appeals’ decision in this case conflicts with or departs from

federal law cited in the other cases. Contrary to Petitioners’

efforts to characterize this case as one involving a holding on

which the courts of appeal stand in conflict, the Ninth Circuit

Court’s decision to dismiss the appeal falls under the rule

reaffirmed in Thermtron and its progeny that remand orders

based on jurisdictional decisions are not reviewable on

appeal.

Petitioners also argue that a conflict in the circuits exists

over whether third-party defendants can remove. The Ninth

Circuit has not yet addressed this issue. See O'Halloran v.

University of Washington, 856 F.2d 1375 (9th Cir. 1988).

However, whether such a conflict exists is not relevant to this

case for two reasons. First, when the courts of appeal address

the issue of removal by third-party defendents, the one issue

on which they uniformly agree is that “removal should only

be allowed for [third-party] claims that are, in the language of

§ 1441(c), ‘separate and independent.’” Patient Care, Inc. v.

Freeman, 755 F. Supp. 644, 650 (D.N.J. 1991). The District

Court here specifically determined that the third-party claims

in this case were not separate and independent. Its decision

that removal was not proper was entirely consistent with the

law of other federal courts.

1]

More importantly, the issue before this Court is whether the

Ninth Circuit erred in dismissing the appeal under 28 U.S.C.

§ 1447(d). It is not whether third-party defendants can

remove. Any conflicts among the courts of appeal on the issue

of third-party removal are not relevant to a review of the

petition for writ of certiorari in this case.*

4.4 Section 1447(d) of Title 28 Does Not Violate

Petitioners’ Right to Equal Protection Under the Fifth

Amendment of the United States Constitution.

Petitioners contend that their equal protection rights have

been violated because Congress has denied private litigants

the right to appeal from remand orders, but has granted such

appeal rights to federal agencies such as the FDIC under

certain specific statutes. See, e.g., 12 U.S.C. § 1819(b)(2)(C)

(“The Corporation may appeal any order of remand entered

by any United States district court.”). According to

Petitioners, if Congress enacts a law giving-federal agencies

access to the federal appellate process, it must give private

litigants the same appeal rights too. Arguably, Congress

cannot differentiate between federal agencies and other parties

in enacting appellate jurisdictional statutes without violating

the equal protection clause. Petitioners’ interpretation of the

equal protection clause is overly broad and unsupportable.

This case does not involve fundamental rights. Petitioners

do not have a constitutional right to an appeal nor do they

have a constitutional right to have their state law claims heard

in federal court. Jones v. Barnes, 463 U.S. 745 (1983)

(Constitution does not grant right to appellate review).

Morever, Petitioners are not members of a protected class.

Therefore, the rational basis test must be used to determine

whether section 1447(d) is constitutional in the face of an

equal protection challenge. Bankers’ Life & Casualty Co. vy.

‘Petitioners also cite two Hawaii cases in support of their argument that

certiorari review should be granted. These cases allegedly stand for the proposition

“that state courts have reached decisions that conflict with those of the federal

courts. However, these state cases obviously do not address the issue of removal to

federal court.

12

Crenshaw, 486 U.S. 71 (1988) (legislation imposing penalties

on unsuccessful appellant was rationally related to state’s

intent to discourage frivolous appeals and, thus, was

constitutional). Under the rational relationship test, a law

violates the dictates of equal protection only if it is not

rationally related to a legitimate government interest. City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). A

party challenging a law on equal protection grounds bears a

heavy burden of overcoming a presumption of rationality by a

clear showing of arbitrariness and irrationality. Hodel v.

Indiana, 452 U.S. 314, 332-33 (1981). Petitioners cannot

meet this heavy burden in this case.

This Court has already considered the Congressional intent

underlying section 1447(d) in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976). As the Court explained:

There is no doubt that in order to prevent delay in

the trial of remanded cases by protracted litigation

of jurisdictional issues, United States v. Rice, 327

U.S. at 751, 90 L.Ed 982, 66 S.Ct. 835, Congress

immunized from all forms of appellate review any

remand order issued on the grounds specified in

§ 1447(c), whether or not that order might be

deemed erroneous by an appellate court.

Id. at 351. Although the Court did not address Congress’

intent in the context of an equal protection challenge, there

can be no question that Congress’ prohibition of appeals from

remand orders is rationally related to its goal of preventing

“the additional delay which a removing party may achieve by

seeking appellate reconsideration of an order of remand.” /d.

at 354 (J. Rehnquist dissenting). Without such a rule, “federal

removal provisions may become a device affording litigants a

means of substantially delaying justice.” /d. at 355.

The fact that Congress has also seen fit to grant greater

appeal rights to the FDIC does not change this analysis.

Section 1819(b)(2)(C) is also rationally related to a legitimate

government interest. In enacting this statute, Congress

13

weighed the need to return remanded cases to the state courts

as expeditiously as possible against the need to have actions

against the FDIC heard and decided by the federal courts.

Although private litigants might use reconsideration of district

court remand orders to delay justice in state courts, federal

agencies would have no such motivation. Therefore, the

concern that compelled Congress to limit appellate review for

private litigants does not apply to federal agencies. Moreover,

§ 1819 also fulfills Congress’ desire to channel actions

against the FDIC away from the state courts and into federal

courts, reducing the potential for multiple suits with

inconsistent results. See Osborn v. Bank of United States, 6

Law. Ed. 204 (1824) (upholding the constitutionality of a

Statute that granted the Bank of the United States the right to

sue in federal court on causes of action based upon state law):

cf. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480

(1983) (Congress properly exercised its power to grant

exclusive federal jurisdiction to cases involving foreign

sovereigns).

Petitioners also mistakenly contend that Congress cannot

restrict the appellate powers of the federal courts at all

without violating Article III, section 1, of the United States

Constitution. This argument has no support whatever.

The federal courts are courts of limited jurisdiction,

jurisdiction that is determined by the Constitution and

Congress. As this Court recently explained:

It remains rudimentary law that “[a]s regards all

courts of the United States inferior to this tribunal,

two things are necessary to create jurisdiction,

whether original or appellate. The Constitution must

have given to the court the capacity to take it, and

an act of Congress must have supplied it.”

Finley v. United States, 490 U.S. 545, 547-48 (1989)

(emphasis in original, citations omitted); see also Argentine

Republic v. Amerada Hess, 488 U.S. 428, 433 (1989) (“We

start from the well-settled proposition that the subject matter

as

14

jurisdiction of the lower federal courts is determined by

Congress in the exact degrees and character which to

Congress may seem proper for the public good”); Stewart

Organization v. Ricoh Corp., 487 U.S. 22, 32 (1988)

(Congress has the power to make rules governing federal

court practice and procedure).

Congress in this case has determined that, because private

litigants may use the federal removal provisions to delay state

court actions, the jurisdiction of the federal appellate courts to

review remand orders must be limited. The line that it has

drawn—between federal agencies, whose claims and defenses

are generally questions of federal law, and private litigants,

who may be motivated to use the federal removal provisions

as a delay tactic—is rationally related to the government’s

interest in an efficient and responsive judicial system.

4.5 The Order Directing Clerk to Issue Writ of

Certiorari ls Not a Final Appealable Order.

HonFed is not a party to the second appeal. However,

HonFed would simply note that the Order Directing Clerk to

Issue Writ of Certiorari is not a final appealable order.

Petitioners argue that the removal order falls under the

collateral order doctrine, which provides an exception to the

requirement of 28 U.S.C. § 1291 that all appeals await final

judgment on the merits. This Court has emphasized that the

collateral order doctrine is a narrow exception and requires a

determination that the order in question “conclusively

determine the disputed question, resolve an important issue

completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment.”

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375

(1981). The removal order does not satisfy this criteria.

Petitioner and Fourth-Party Plaintiff Hugo Von Platen-Luder

may effectively appeal the order after a final judgment is

entered in the fourth-party action without any prejudice to his

rights of appellate review.

15

5. CONCLUSION

For all the reasons set forth herein, Honfed submits that the

Petition for Writ of Certiorari should be denied.

Respectfully submitted, this 22nd day of May, 1992.

LORRAINE H. AKIBA

PATRICIA J. McHENRY

Cades Schutte Fleming & Wright

1000 Bishop Street

12th Floor

Honolulu, Hawaii 968 13

(808) 521-9200

Attorneys for Respondent

Appendix A

12 U.S.C.S. § 1819 (1992) United States Code

(b)(2) Federal court jurisdiction. (A) In general. Except as

provided in subparagraph (D), all suits of a civil nature at

common law or in equity to which the Corporation, in any ca-

pacity, is a party shall be deemed to arise under the laws of

the United States.

(B) Removal. Except as provided in subparagraph (D), the

Corporation may, without bond or security, remove any ac-

tion, suit, or proceeding from a State court to the appropriate

United States district court before the end of the 90-day peri-

od beginning on the date the action, suit, or proceeding is

filed against the Corporation or the Corporation is substituted

as a party.

(C) Appeal of remand. The Corporation may appeal any

order of remand entered by any United States district court.

(D) State actions. Except as provided in subparagraph (E),

any action—

(i) to which the Corporation, in the Corporation’s

capacity as receiver of a State insured depository institution

by the exclusive appointment by State authorities, is a party

other than as a plaintiff;

(ii) which involves only the preclosing rights against

the State insured depository institution, or obligations owing

to, depositors, creditors, or stockholders by the State insured

depository institution; and

(i11) in which only the interpretation of the law of

such State is necessary,

shall not be deemed to arise under the laws of the United

States.

(E) Rule of construction. Subparagraph (D) shall not be

construed as limiting the right of the Corporation to invoke

the jurisdiction of any United States district court in any ac-

tion described in such subparagraph if the institution of which

the Corporation has been appointed receiver could have in-

voked the jurisdiction of such court.

No. 91-1693

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

CALIFORNIA-HAWAIIAN FUND, INC., TRITON

CONTINENTAL PROPERTIES JOINT VENTURE,

HUGO VON PLATEN-LUDER, MICHAEL B.

MONTGOMERY, RONALD D. MCCOMMON,

and SHIRLEY VON PLATEN-LUDER,

Petitioners,

vs.

HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION, TRITON CONTINENTAL PROPERTIES

CORPORATION, ALVIN K.H. CHEE, JAMES ADRIAN

ADAMS, CHEE-HIRONAKA, SAM S. HIRONAKA,

FEDERAL DEPOSIT INSURANCE CORPORATION,

OFFICE OF THRIFT SUPERVISION, and

RESOLUTION TRUST CORPORATION

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION'S SERVICE LIST RE BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

LORRAINE H. AKIBA

PATRICIA J. MCHENRY

Cades Schutte Fleming & Wright

1000 Bishop Street

12th Floor

Honolulu, Hawaii 96813

(808) 521-9200

Attorneys for Respondent

RESPONDENT HONOLULU FEDERAL SAVINGS AND LOAN

ASSOCIATION’S SERVICE LIST RE BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

I hereby certify that on this date, three (3) copies of

Respondent HONOLULU FEDERAL SAVINGS AND LOAN ASSOCIATION’S Brief

in Opposition to Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit, was duly served by

mail, postage prepaid, addressed to the following:

(1)

(2)

(4)

GARY VICTOR DUBIN

Seven Waterfront Plaza

500 Ala Moana Boulevard

Suite 4900

Honoluiu, Hawaii 96813

(808) 537-2300

JOHN R. DWYER, ESQ.

WILLIAM G. MEYER, ESQ.

ADELBERT GREEN, ESQ.

900 Fort Street Mall

Suite 1800

Honolulu, Hawaii 96813

(808) 524-8000

DANIEL BENT, ESQ.

BEVERLY A. WEE, ESQ.

United States Attorneys

Room 6100, Prince Kuhio

Federal Building

300 Ala Moana Boulevard

Honolulu, Hawaii 96813

(808) 541-2850

THOMAS A. SCHULZ, ESQ.

LORETTA R. PITT, ESQ.

DANIEL ROSS, ESQ. ;

F.0.z.m:

550 17th Street, N.W.

Washington, D.C. 20429

(202) 736-0550

California-Hawaiian Fund

et al.

Triton Continental

Properties Corporation,

Alvin K.H. Chee, James

Adrian Adams, Chee-

Hironaka, Sam S.

Hironaka

Federal Deposit

Insurance Corporation,

Office of Thrift

Supervision, Resolution

Trust Corporation

Federal Deposit

Insurance Corporation

-

(5)

HARRIS WEINSTEIN, ESQ. —— Offi¢Ce OF TAFLIIC

THOMAS J. SEGAL, ESQ. Supervision

AARON B. KAHN, ESQ.

CHRISTOPHER E. WILLARD, ESQ.

O.T.S. -- General Counsel’s Office

1700 "G" Street, N.W.

Washington, D.C. 20552

(202) 906-6404

(6) DIANE D. HASTERT, ESQ. Resolution Trust

SALLY A. HUGHES, ESQ. Corporation

1001 Bishop Street

Suite 1600, Pauahi Tower

Honolulu, Hawaii 96813

(808) 531-8031

(7) SOLICITOR GENERAL United States of America

Department of Justice .

Washington, D.C. 20530

(202) 633-2201

DATED: Honolulu, Hawaii, May 22, 1992.

LORRAINE H. AKIBA

“ADES SCHUTTE FLEMING PATRICIA J. MCHENRY

& WRIGHT Cades Schutte Fleming & Wright

1000 Bishop Street

12th Floor

Honolulu, Hawaii 96813

(808) 521-9200

Attorneys for Respondent