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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 815

## Text

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0534%3A2. Public record. Not legal advice.