Opposition Brief — Official Committee of Tort v. Dow Corning Corp.

(>)| Er oe D

No. 97-210 ~ ocT 3 197 |

_ Jnthe Supreme Court of the

OCTOBER TERM, 1997

OFFICIAL COMMITTEE OF TORT CLAIMANTS,

Petitioner,

V.

Dow CORNING CORPORATION, et al., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF FOR DOW CORNING CORPORATION,

THE DOW CHEMICAL COMPANY, AND CORNING

INCORPORATED IN OPPOSITION

HERBERT L. ZAROV BARBARA J. HOUSER

JAMES C. SCHROEDER Counsel of Record

ROBERT M. Dow, JR. GEORGE H. TARPLEY

Mayer, Brown & Platt Sheinfeld, Maley & Kay P.C.

190 South LaSalle Street 1700 Pacific Avenue, Suite 4400

Chicago, IL 60603 Dallas, TX 75201-4618

(312) 782-0600 (214) 953-0700

Counsel for The Dow Counsel for Dow Corning

Chemical Company Corporation

WILLIAM D. EGGERS

Nixon Hargrave Devans

& Doyle LLP

P.O. Box 1051, Clinton Square

Rochester, NY 14603

(716) 263-1000

Counsel for Corning Incorporated

i

QUESTIONS PRESENTED

1. Whether this Court should review the Sixth Circuit’s

ruling that it had mandamus jurisdiction when petitioner does

not seek review of one of the Sixth Circuit’s alternative

grounds for mandamus jurisdiction — namely, that the

district court had not complied with the Sixth Circuit’s

mandate in a previous appeal.

2. Ifso, whether the Sixth Circuit correctly held — as

an alternative ground for the exercise of mandamus jurisdic-

tion — that an abstention decision could be reviewed under

the All Writs Act, 28 U.S.C. § 1651, when the abstention

statute, 28 U.S.C. § 1334(d), provides only that abstention

decisions are “not reviewable by appeal or otherwise by the

court of appeals under section 158(d), 1291, or 1292 of this

title.”

3. Whether district courts, in exercising the power to

fix trial venue provided in 28 U.S.C. § 157(b)(5), may

transfer, to the district where a bankruptcy is pending, claims

that are related to the bankruptcy and may affect the size of

the bankruptcy estate.

li

RULE 29.6 STATEMENT

The Dow Chemical Company and Corning Incorporated

each own 50% of Dow Corning Corporation. The following

is a list of nonwholly owned subsidiaries of Dow Corning

Corporation:

Dow Corning de Argentina S.A.I.C.

Dow Corning de Brazil LTDA

Dow Corning de Colombia, S.A.

Dow Corning de Mexico S.A. de C.V.

Dow Corning de Venezuela S.A.

Dow Corning Chile S.A.

DC STI S.A.

Dow Corning S.A.

Dow Corning Hansil, LTD

Universal Silicones and Lubricants Private, Ltd.

SIL Trade

SDC Technologies, Inc.

Hemlock Semiconductor Corporation

Dow Corning Toray Silicone Co., Ltd.

Dow Corning Foreign Sales Corporation

DC Krafft S.A.

The Dow Chemical Company has no parent company.

The following is a list of nonwholly owned subsidiaries of

The Dow Chemical Company:

Dow Kakoh Kabushiki Kaisha

P.T. Dow Polymers Indonesia

Petroquimica Bahia Blanca S.A.I.C.

Polisur S.A.

INCA International SpA

Chemtech Royalty Associates, L.P.

Petroquimica - Dow S.A. (Petrodow)

Radian International LLC

EDN-Estireno Do Nordeste S.A.

ee

ili

Mycogen Corporation

DowElanco B.V.

Corning Incorporated has no parent company. The

following is a list of nonwholly owned subsidiaries of

Corning Incorporated:

Corning Incorporated Foreign Sales Corporation

Corning France, S.A.

Corning Japan K.K.

Corning Asahi Corporation

Corning Asahi Video Products Company

Iwaki Corning (M) SDN BHD

Dominique Dutscher, S.A.

Siecor Corporation

Siecor Mexico S.A. de C.V.

Siecor S.A. de C.V.

EuroKera S.N.C.

Keraglass S.N.C.

Samcor Glass Limited

Sicover, S.A.

Siecor GmbH

Siecor GmbH & Co. KG

International Hau-Mei Glass Engineering Co., Ltd.

Optical Waveguides Australia Pty. Ltd.

Pittsburgh Corning Europe N.V.

Pittsburgh Corning (U.K.) Ltd.

Shanghai Corning Engineering Corporation Ltd.

Optical Fibres

Samsung-Corning Co., Ltd.

Samsung Corning Company (Malaysia) SDN BHD

N-Cor, Ltd.

ACOR Programs, Inc.

CeraMem Separations, Inc.

Cormetech, Inc.

American Video Glass Company

iV

Corporate Venture Partners

Samsung Corning Precision Glass Co., Ltd.

Corsam. Glasstec R&D Center

Eurokera North America, Inc.

Fiber Sensys, Inc.

Molecular Simulations, Inc.

Pittsburgh Corning Corporation

U.S. Conec, Ltd.

Steuben Partners, L.P.

Quanterra Incorporated

Vv

TABLE OF CONTENTS

Page

QUESTION PRESENTER .. 0.5 ee cen i

RULE 29.6 STATEMENT .:............006. li

TABLE GF AUTHUOBITICS . 0. ww cee ee ce ee vi

ee ees 1

EEE 05 Ae ke ea ote so ol eee 1

PE. ee a ke eae eae 1

a IS Sa 8 oyna 4 ose ee ee cee l

B. The Proceedings Below............... 3

ee ee ere eee 3

2. Tre second appeal 2. wk ke es 4

REASONS FOR DENYING THE PETITION ...... 6

I. REVIEW OF THE § 1334(d) QUESTION IS

| er ee a 7

A. A Ruling By This Court Will Have No Effect

On The Decision Below Since Petitioner Does

Not Seek Review Of The Sixth Circuit’s

Alternative Basis For Jurisdiction......... 7

vi

TABLE OF CONTENTS—Continued

B. In Any Event, The Sixth Circuit’s Construction

Of § 1334(d) Is Correct And Is Fully Consistent

With Proor Precedemt . 2... ccc cca 10

Il. THE SIXTH CIRCUIT’S RULING THAT THERE

IS A POWER TO TRANSFER UNDER § 157(b)(5)

IS CORRECT AND IS CONSISTENT WITH DE-

CISIONS OF OTHER COURTS OF APPEALS . 14

MIE ose ve eo 4 ee Se ee 18

Vii

TABLE OF AUTHORITIES

Cases: Page

A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir.

Suis oS ee Oka ee ee 4, 6, 15, 16

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

NG i i ae a os eh aes ae ee 13

Delaware, L. & W. R. Co. v. Rellstab, 276 U.S. 1

Sie ge cig a eal nls a ee 9

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

I ech oly eee sas ee Nee Se en 8

Felker v. Turpin, 116 S. Ct. 2333 (1996) ........ 11

FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965) .. 8

General Atomic Co. v. Felter, 436 U.S. 493 (1978)... 8

Herb v. Pitcairn, 324 U.S. 117 (1945). .......... 7

In re Dow Corning Corp., 187 B.R. 919 (E.D. Mich.

Sane eer” gaara Aare eer, Soar eee os oe 3

In re Dow Cerning Corp., 86 F.3d 482 (6th Cir. 1996)

(“Dow Corning I”), cert. denied, 117 S. Ct. 718

See Se Ne a stk ee eee ae 2-4, 8, 16

In re Pan Am. Corp., 16 F.3d 513 (2d Cir. 1994)... 15

In re Pan Am. Corp., 950 F.2d 839 (2d Cir. 1991) .. 16

Vill

TABLE OF AUTHORITIES—Continued

Page

In re United States Brass Corp., 110 F.3d 1261 (7th Cir.

SE Os eee se Ge eS ee re eee 14

In re United States Lines, 128 B.R. 339 (S.D.N.Y.

WR eke eke ao ee Ee ee eee 15

Leatherman v. Tarrant County Narcotics Unit, 507 U.S.

eee ee ee ee 11

Lindh v. Murphy, 117 S. Ct. 2059 (1997) ........ 11

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th

el. SO eee ae OA ee En ON A ees 11

NLRB v. Donnelly Garment Co., 330 U.S. 219 (1947) . 8

Patterson v. Shumate, 504 U.S. 753 (1992) ..... 12, 16

Pennsylvania Dep’t of Pub. Welfare v. Davenport, 495

Fe ck ok 6 Cee eee ae 13

Potter v. United States, 155 U.S. 438 (1894) ...... 12

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

Pe GSeOe hk ss a aes oe Oe or ss 2 11

Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494

Se ss 4 ne Ae ee 10

ix

TABLE OF AUTHORITIES—Continued

Page

United States v. Menasche, 348 U.S. 528 (1955) ... 13

United States v. Ron Pair Enterprises, 489 U.S. 235

OS err Nee Sere nee | TP! 10, 13

United States v. United States Dist. Ct., 334 U.S. 258

DS a a es ee ie eee ee 9

Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425 (1978) . 7

Walters v. Metropolitan Educ. Enterprises, 117 S. Ct.

NN aes ge es es ae RE ee S 13

Statutes and Rules:

Pe BD son 8 cee eke beeen’ 1

ee ee Os a vk eke G4 a 10, 12

me ek & oe 9 eS eS Se he ee 10, 12

Be Users BTM ne ce kw eee 12

a a ee 3, 14

Oe Wee BP 6 5 os oe hes 12

28 U.S.C. § 1334) .........0.00.. 5-7, 10-14

Wes BOF i ee ee ees 11, 12

xX

TABLE OF AUTHORITIES—Continued

Page

ae a ED. 8 ets 6450S OU wie eee 14

oe ee Os cea KS th Ew eR eee ee eee 16

en Wes BGPP. in 5 0 0st ee Kicks wn 16

ae Bae... O GRD hs cs weeks 3, 4, 6, 14-17

ee ees OS OEE ahs ko 4c ak RAR 10, 12

Be De EK RS 6 0 Aw Sees 6, 10-13

. eS eee ee ee eet 11 |

I SI Se ss 0-0 ee cE Re Sees 6

Miscellaneous:

Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 COLUM. L. REV. 527, 536 (1947) .. 10

Marcia Angell, Science on Trial: The Clash of Medical

Evidence and the Law in the Breast Implant Case

kr es er ee 1

Robert L. Stern, Eugene Gressman, Stephen M. Shapiro

& Kenneth S. Geller, Supreme Court Practice 173

Cs GG 6 SR oe a ae ok Oe wh ae he bee 7

cc ancmmenaianiniaiailnlidie cilia

BRIEF FOR DOW CORNING CORPORATION,

THE DOW CHEMICAL COMPANY, AND

CORNING INCORPORATED IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-12a)

is reported at 113 F.3d 565. The opinion of the district

court (Pet. App. 13a-20a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 8, 1997. The petition for writ of certiorari was filed on

August 4, 1997. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATEMENT

A. Background.

Dow Corning Corporation (“Dow Corning” or “the

debtor”) is a leading manufacturer of silicone industrial

products. Along with its subsidiaries, Dow Corning sells

more than 8,700 products, nearly all of which are made from

silicones or otherwise incorporate silicone technologies.

C.A. App. 208. In 1991, the peak year for sales of Dow

Corning’s breast implant products, silicone gel breast

implants constituted less than 1% of Dow Corning’s total

sales. Ibid.

Studies by disinterested scientists have consistently found

no connection between silicones and disease. The executive

editor of The New England Journal of Medicine recently

summarized the scientific testing as follows: “several good

epidemiologic studies have failed to show an association

between implants and a host of connective tissue diseases,

symptoms, and abnormal lab tests. * * * The best evidence

now is a relative risk of 1.0, indicating no contribution of

implants to disease.” Marcia Angell, Science on Trial: The

Clash of Medical Evidence and the Law in the Breast Implant

2

Case 195-197 (1996). Nonetheless, tens of thousands of

recipients of Dow Corning’s breast implants have sued in

recent years, claiming to have contracted various diseases as

a result of the silicones in their implants. Jn re Dow Corning

Corp., 86 F.3d 482, 485 (6th Cir. 1996) (“Dow Corning I”),

cert. denied, 117 S. Ct. 718 (1997).

In thousands of these cases, the plaintiffs have sued not

only Dow Corning, but also its corporate shareholders, The

Dow Chemical Company (“Dow Chemical”) and Corning

Incorporated (“Corning”) (collectively the “Shareholders”),

even though neither Dow Chemical nor Corning designed,

manufactured, tested, or sold breast implants. 86 F.3d at

485-86. All of the claims against the Shareholders are

brought by plaintiffs who are also asserting the same claims

against the debtor, seeking recovery for the same alleged

injuries resulting from the same products — the debtor’s

implants. Pet. App. 9a-10a; C.A. App. 1499-1605. Thus,

all of the cases against the debtor and its Shareholders raise

the same threshold issue — do Dow Corning’s implants cause

disease, as the tort claimants assert? C.A. App. 123, 1500,

1504-1605. (Some cases include claims that implants have

ruptured or leaked, but those cases also allege uniformly that

the implants cause disease.) Throughout this litigation, Dow

Corning and its Shareholders have suggested that the federal

courts keep open the option of eventually holding a single

trial to resolve this common, potentially dispositive, ques-

tion. E.g., C.A. App. 214-22, 861-73, 883-87, 895-96.

For many years, Dow Corning shared insurance cover-

age with Dow Chemical and Corning under a substantial

number of liability insurance policies. As the court of

appeals has noted, Dow Corning’s interest in these policies

and their proceeds constitutes “one of the largest assets of

[the] bankruptcy estate”; the policies have total aggregate

coverage limits of more than $1 billion. Dow Corning I, 86

F.3d at 494.

3

In addition, the court of appeals has held that if the

claims against Dow Chemical and Corning proceed

““separately,’” the pool of joint insurance available to the

debtor may be “‘significantly reduce[d].’” Pet. Anp lla

(quoting Dow Corning I, 86 F.3d at 495). This could occur

because settlements or judgments paid by the Shareholders,

or defense expenses incurred by the Shareholders in “litigat-

ing thousands of breast-implant claims in innumerable

jurisdictions,” Pet. App. 12a, may be reimbursed by joint

insurance proceeds that would otherwise be part of the

debtor’s estate. Dow Corning I, 86 F.3d at 495.

B. The Proceedings Below.

1. The first appeal. Shortly after its Chapter 11

filing, Dow Corning moved under 28 U.S.C. § 157(b)(5) to

transfer to the Eastern District of Michigan, where its bank-

ruptcy case is pending, all pending breast implant claims

involving Dow Corning implants — that is, all of the claims

against Dow Corning and its Shareholders. Pet. App. Sa.

In September 1995, the district court granted the transfer

motion as to the claims against the debtor, but refused to

transfer the claims against the Shareholders, ruling that the

latter claims were not “related to” the debtor’s bankruptcy

case and thus not subject to the district court’s jurisdiction

under 28 U.S.C. § 1334(b). In re Dow Corning Corp., 187

B.R. 919 (E.D. Mich. 1995).

In April 1996, the Sixth Circuit reversed the district

court’s refusal to transfer the claims against the Sharehold-

ers. First, the court of appeals held that those claims were

“related to” Dow Corning’s bankruptcy within the meaning

of § 1334(b). Dow Corning I, 86 F.3d at 490-95. Second,

the court held that district courts have the power, under 28

U.S.C. § 157(b)(5), to fix trial venue for claims “related to”

the bankruptcy in the district where the bankruptcy is

4

pending. Jd. at 495-97." Finally, noting that “a Section

157(b)(5) motion ‘requires an abstention analysis,’” the Sixth

Circuit remanded for further proceedings, “for the district

court to ‘determine in each individual case whether hearing

it would promote or impair efficient and fair adjudication’”

of the bankruptcy case. 86 F.3d at 497 (emphasis added).

2. The second appeal. On remand, the district

court again declined to transfer the claims against the

Shareholders, this time on the ground that it would abstain.

from hearing those claims. Pet. App. 13a-20a. In so ruling,

the district court did not consider the claims on an individual

basis. Rather, the court ruled on abstention en masse,

holding that all of the claims against the Shareholders were

subject to mandatory abstention and that it would also

exercise its discretion to abstain as to all of the claims. Jbid.

The Sixth Circuit again overturned the district court’s

decision, ruling that the district court’s ruling was “fraught

with clear error”; that its reasoning was, “in generous terms,

inadequate,” “troubling,” and made “little practical sense”;

and that the district court had, in several respects, “ignored”

the Sixth Circuit’s prior ruling. Pet. App. 8a-11a.

The court of appeals held “for two reasons that we have

jurisdiction in mandamus to review the district court’s

‘ In so holding, the Sixth Circuit followed the Fourth

Circuit’s decision in A.H. Robins Co. v. Piccinin, 788 F.2d 994

(4th Cir. 1986), another mass tort case. In Robins, the Fourth

Circuit held that claims related to a bankruptcy case could be

centralized in one forum under § 157(b)(5); this provided an

opportunity to adopt a “mechanism for dispute resolution” that

would obviate the need for “innumerable trials, stretching over an

interminable time” and would avoid the “stupendous costs that

would be involved if all the claims here had to be tried.” 788

F.2d at 1013 (quoted at 86 F.3d at 496).

5

decision.” Pet. App. 6a. First, the court explained, “this is

not the ordinary situation” involving an abstention decision.

Ibid. Rather, the Sixth Circuit in Dow Corning I “in-

structed” the district court “to undertake a case-by-case

review” of each tort claim and determine, “as to each case,

whether to abstain.” Jd. at 6a-7a. The district court,

however, “completely disregard[ed]” that instruction and

instead issued “blanket determination[s]” that abstention was

appropriate. Jd. at 8a. Since the district court “did not

comply with our order of remand,” the court of appeals

concluded that it was “necessary and appropriate” to issue a

writ of mandamus “to require the district court to conduct

the abstention analysis in strict compliance with the require-

ments of § 1334 and our order of remand.”” Jd. at 7a.

The court of appeals also provided a “[s]econd,”

alternative ground for the exercise of mandamus jurisdiction.

Pet. App. 7a. The court held that § 1334(d) — which

provides that abstention decisions are “not reviewable by

appeal or otherwise * * * under section 158(d), 1291, or

1292 of this title” — did not preclude its ability to review

abstention decisions “pursuant to our mandamus authority

, The court of appeals further explained that case-by-case

abstention decisions were necessary “because of the paucity of

evidence on the record” supporting abstention on a global basis.

Pet. App. 9a. In “many” cases, the court noted, “there does not

even appear to have been a motion for abstention filed by the

plaintiff,” and “[i]t is undisputed that some of the cases do not

meet the requirements of mandatory abstention.” Jd. As for

discretionary abstention, the district court “overlooked the risks to

Dow Corning’s estate that were clearly articulated in our prior

decision” and, in particular, “ignored this Court’s examination of

the evidence [concerning the joint insurance] and made a conclu-

sory finding to the contrary” — “without a hearing or the presenta-

tion of additional evidence.” Jd. at 10a-1 la.

6

under 28 U.S.C. § 1651,” since § 1334(d) “does not

mention” § 1651. Pet. App. 7a.

REASONS FOR DENYING THE PETITION

The questions presented in the petition clearly do not

warrant this Court’s review. Petitioner’s first question —

whether § 1334(d) prohibits mandamus review under § 1651

— is purely academic. The court of appeals articulated

another ground for mandamus jurisdiction — the district

court’s failure to comply with the Sixth Circuit’s previous

mandate — that petitioner does not even ask this Court to

review (and which is obviously case-specific, presents no

question of general importance, and is plainly correct in any

event). Thus, a decision by this Court disagreeing with the

Sixth Circuit’s construction of § 1334(d) would have no

effect on the judgment of the court of appeals.

Even if resolution of the § 1334(d) question could

change the outcome of this case, there is no circuit conflict

on the issue whether that statute prohibits review by manda-

mus, and the Sixth Circuit’s decision is fully consistent with

this Court’s precedent and the settled canons of statutory

construction. Nor are the circuits divided on whether a

district court has the authority, in setting trial venue under 28

U.S.C. § 157(b)(5), to transfer cases within the district

court’s “related to” bankruptcy jurisdiction to the district

where the bankruptcy is pending for trial. Indeed, in

accordance with the plain language of the statute, the circuits

have uniformly upheld the power to order such transfers in

appropriate cases. See, e.g., Robins, 788 F.2d at 1010.

In short, there are no “compelling reasons,” Rule 10,

for reviewing the questions presented by the petitioner. Not

only is there no conflict among the courts of appeals, but a

decision by this Court on petitioner’s principal ground for

review would not change the result below. Accordingly,

there is no basis for granting the petition.

7

I. REVIEW OF THE § 1334(d) QUESTION IS UN-

WARRANTED.

A. A Ruling By This Court Will Have No Effect On

The Decision Below Since Petitioner Does Not

Seek Review Of The Sixth Circuit’s Alternative

Basis For Jurisdiction.

The first argument in the petition — that this Court

should review the Sixth Circuit’s ruling on whether §

1334(d) permits mandamus review of abstention decisions —

is simply inexplicable. As noted above, the Sixth Circuit’s

principal basis for mandamus jurisdiction was not § 1334(d),

but that the district court, on remand, failed to comply with

the Sixth Circuit’s mandate in Dow Corning I. Petitioner

asserts briefly that this holding is “untenable” (Pet. 9-10),

but it does not ask this Court to review this alternative

holding by the court of appeals. That being the case, there

is no reason for the Court to consider the Sixth Circuit’s

other rationale for exercising mandamus jurisdiction. This

Court typically does not decide questions that would not alter

the result in the court below. Herb v. Pitcairn, 324 U.S.

117, 126 (1945); Robert L. Stern, Eugene Gressman,

Stephen M. Shapiro & Kenneth S. Geller, Supreme Court

Practice 173 (7th ed. 1993).

Even if petitioner had sought review of the Sixth

Circuit’s conclusion that the district court failed to comply

with the appellate court’s earlier mandate, that question

would not come close to satisfying the stringent standards

required for this Court to grant certiorari. This ruling by the

court of appeals is no more than an application, to the

particular facts of this case, of the well-settled rule that an

appellate court may issue a writ of mandamus “if the lower

court “does not proceed to execute the mandate, or disobeys

and mistakes its meaning.’” Vendo Co. v. Lektro-Vend

Corp., 434 U.S. 425, 427 (1978) (quoting United States v.

“ 8

Fossatt, 62 U.S. (21 How.) 445, 446 (1859)). See also,

e.g., General Atomic Co. v. Felter, 436 U.S. 493, 497

(1978) (“if a lower court ‘mistakes or misconstrues the

decree of this Court, and does not give full effect to the

mandate, its action may be controlled * * * by a writ of

mandamus’”). And while this Court is not foreclosed from

reviewing the court of appeals’ interpretation of the scope of

its mandate, the Court consistently has “recognized that ‘the

court that issues a mandate is normally the best judge of its

content, on the general theory that the author of a document

is ordinarily the authoritative interpreter of its purposes.’”

NLRB v. Donnelly Garment Co., 330 U.S. 219, 227 (1947)

(quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134,

141 (1940)); see also FTC v. Colgate-Palmolive Co., 380

U.S. 374, 379 (1965) (“Obviously, the court which drafted

the mandate is normally in the best position to determine

whether the Commission’s subsequent order is consistent

with the mandate”).

Here, the Sixth Circuit’s previous directions were

unequivocal. In Dow Corning I, the court of appeals

explicitly instructed the district court that in conducting its

“‘abstention analysis’” on remand, it had “to ‘determine in

each individual case whether hearing it would promote or

impair efficient and fair adjudication’” of the debtor’s

bankruptcy case. 86 F.3d at 497 (emphasis added). The

district court disregarded that instruction, deciding abstention

on a global basis rather than conducting “the necessary case-

by-case inquiry” mandated by the Sixth Circuit’s prior

opinion. Pet. App. 9a. The district court also “ignored”

key evidentiary conclusions settled by the Sixth Circuit in the

first appeal and made “contrary” findings “without a hearing

or the presentation of additional evidence.” Jd. at 11a.

Accordingly, even if petitioners had sought certiorari on the

question, there would have been no cause for this Court to

9

review the plainly correct judgment of the court of appeals

that its mandate had been disobeyed.

In these circumstances, the Sixth Circuit was not

required to sit by helplessly while the district court disobeyed

its instructions and ignored its conclusions. Quite the

contrary — a court of appeals unquestionably has the “power

to require its judgment to be enforced as against any obstruc-

tion that the lower Court, exceeding its jurisdiction, may

interpose.” Delaware, L. & W. R. Co. v. Rellstab, 276 U.S.

1, 5 (1928) (Holmes, J.). And it possessed the discretion “to

issue mandamus to protect [its] mandate” even assuming

arguendo that the-district court’s abstention decision would

not otherwise be reviewable. United States v. United States ~

Dist. Ct., 334 U.S. 258, 264 (1948) (holding that the Second

Circuit had the power to issue a writ of mandamus to enforce

its prior mandate, even assuming that it would have no

jurisdiction over future appeals in the case). “[T]he fact that

mandamus is closely connected with the appellate power does

not necessarily mean that the power to issue it is absent

where there is no existing or future appellate jurisdiction to

which it can relate.” Jd. at 263. Thus, an appellate court

may issue a writ of mandamus in order to “protect[ ] a past

exercise of jurisdiction,” even though the court may “have

nothing to do with any other appeals in the case.” Jd. at ~

264. “The power to compel obedience with the mandate

turns on whether the lower court has obstructed enforcement

of it,” not whether the court of appeals will have jurisdiction

over future appeals. Jd. at 265.

All of this has long been settled. When this is coupled

with petitioner’s failure to seek review of the Sixth Circuit’s

particular application of this rule, it is evident that there is no

basis for this Court to review the Sixth Circuit’s conclusion

that it had jurisdiction to issue a writ of mandamus in this

case.

niall

10

B. In Any Event, The Sixth Circuit’s Construction

Of § 1334(d) Is Correct And Is Fully Consistent

With Prior Precedent.

Even if there were not an independent ground for the

Sixth Circuit to exercise mandamus jurisdiction, that court’s

construction of § 1334(d) is clearly correct under established

rules of statutory construction. Moreover, the Sixth Circuit’s

decision on this issue does not conflict with the holdings of

any other courts of appeals.

The starting point in construing any statute is, of course,

“the language of the statute itself.” United States v. Ron

Pair Enterprises, 489 U.S. 235, 241 (1989). Section 1334(d)

provides that abstention orders are “not reviewable by appeal

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

1291, or 1292 of this title.” This means precisely what it

sayS: parties may not seek review of a district court’s

abstention rulings under sections 158(d), 1291, or 1292. The

statute plainly does not, however, bar review under § 1651;

that provision is conspicuously absent from the list of

provisions contained in § 1334(d). In interpreting a statute,

“[o]ne must * * * listen attentively to what it does not say.”

Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 COLUM. L. REV. 527, 536 (1947) (emphasis

added) .#

. Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494

(1995), does not shed any light on whether mandamus review is

barred by the language of § 1334(d), because that was not a

mandamus case and thus the Court had no cause to consider the

significance of the omission of § 1651 from the statutory

enumeration. The defendant in that case filed an appeal from the

district court’s remand order, not a mandamus petition. See id. at

496.

SS a Saas eae >

a

11

This reading of § 1334(d) is supported by the doctrine

of expressio unius est exclusio alterius. Under this long-

established canon of construction, the references to particular

statutory provisions in § 1334(d) must be read to exclude

others, including § 1651. See, e.g., Leatherman v. Tarrant

County Narcotics Unit, 507 U.S. 163, 168 (1993) (a height-

ened pleading standard is not required for Monell actions,

because while Fed. R. Civ. P. 9(b) requires “greater

particularity in pleading certain actions,” it “dofes] not

include among the enumerated actions any reference to

complaints alleging municipal liability under § 1983”); Lindh

v. Murphy, 117 S. Ct. 2059, 2063 (1997) (chapter 153 of the

Antiterrorism Act does not apply to pending cases because

the statute provides only that chapter 154 of the act applies

to pending cases); Felker v. Turpin, 116 S. Ct. 2333, 2341

(1996) (Stevens, J., concurring) (noting that the section of

the Antiterrorism Act providing that certain orders “shall not

be appealable and shall not be the subject of a petition for

* * * writ of certiorari” does not “purport to limit our

jurisdiction * * * under the All Writs Act, 28 U.S.C. §

1651”). As the Ninth Circuit concluded in an analogous

case, “[i]t would be an odd use of language” for a statute to

list certain sections of the U.S. Code “if the references to

particular sections were not meant to exclude others.”

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th

Cir. 1992). “No sensible person accustomed to the use of

words in laws would speak so narrowly and precisely of

particular statutory provisions, while meaning to imply a

more general and broad coverage than the statutes desig-

nated.” Ibid.

Congress knew full well how to foreclose mandamus as

an avenue for seeking appellate review, had it wanted to do

so. Most strikingly, 28 U.S.C. § 1447(d), the statute

involved in Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336 (1976), provides unequivocally that certain remand

12

orders are “not reviewable on appeal or otherwise” —

without qualifying that language by listing only certain

statutory provisions, as in § 1334(d). Thus, not only is it

unquestionably false to state that those two statutes have

“identical language” (Pet. 8), but the absence in § 1334(d)

of a blanket prohibition on appellate review like that found

in § 1447(d) is a compelling indication that Congress

intended that § 1334(d) be less sweeping in effect. See

Patterson v. Shumate, 504 U.S. 753, 758 (1992); Potter v.

United States, 155 U.S. 438, 446 (1894) (noting that the

word “wilful” used to describe certain offenses but not others

in same statute “cannot be regarded as mere surplusage; it

means something”).

Petitioner’s interpretation of § 1334(d) reads the

enumerated sections right out of the statute. If petitioner

were correct that Congress intended only to clarify that

“abstention decisions in the bankruptcy court may be

reviewed in the district court” alone (Pet. 11), it could

simply have stated that decisions under § 1334(c)(2) are not

reviewable by the courts of appeals — period. There

certainly would not have been any need to go on and list §§

158(d), 1291, and 1292, each of which is a means to obtain

review by the court of appeals, unless the intention was to

limit the breadth of § 1334(d) with respect to the courts of

appeals, so that the bar on appellate review applied only to

certain routes of review. Congress would not have recited

some (but not all) of the possible bases for obtaining appel-

* _ In light of the specific statutory references in § 1334(d),

the last two words in the “appeal or otherwise” phrase in that

statute cover not mandamus (since § 1651 is not listed), but 28

U.S.C. § 1292(b). Appellate review under that statute is discre-

tionary; a party seeking to invoke § 1292(b) must file an

“application” for leave to appeal with the court of appeals, not a

notice of appeal.

13

late jurisdiction if it had intended to prevent a court of

appeals from reviewing abstention decisions in every single

circumstance. The inclusion of those specific sections of

Title 28 would be mere surplusage under petitioner’s theory,

and this Court has stated repeatedly that it will not construe

a statute so that part of the statute is rendered meaningless.

See, e.g., Walters v. Metropolitan Educ. Enterprises, Inc.,

117 S. Ct. 660, 664 (1997) (“Statutes must be interpreted, if

possible, to give each word some operative effect”); Pennsyl-

vania Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552,

562 (1990) (“Our cases express a deep reluctance to interpret

a statutory provision so as to render superfluous other

provisions in the same enactment”); United States v.

Menasche, 348 U.S. 528, 538-39 (1955) (“It is our duty ‘to

give effect, if possible, to every clause and word of a

statute,’ * * * rather than to emasculate an entire section, as

the [petitioner’s] interpretation requires”).

Petitioner attempts to override the plain statutory

language with a lengthy quotation from the legislative history

of § 1334(d). Pet. 11-12. But the quoted passage is not

even close to being “‘clear contrary evidence of legislative

intent’” (Pet. 10); indeed, it says nothing at all about the

reasons why Congress chose, in § 1334(d), to list only

certain provisions in Title 28 and not § 1651. And the

notion that particular language used by Congress in drafting

a statute — here, the enumeration of certain sections of the

United States Code — is rendered insignificant by silence in

the legislative history turns settled rules of statutory construc-

tion upside down. Plain language trumps legislative history,

not the other way around, Ron Pair Enterprises, 489 U.S. at

241; Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254

(1992), and all the more so when the legislative history cited

does not say a word about the language in dispute.

Thus, the Sixth Circuit’s decision is fully consistent with

established rules of statutory interpretation. And petitioner

14

does not (and could not) argue that there is any split in the

circuits on the construction of § 1334(d).* Accordingly, even

if the Sixth Circuit did not have an alternative basis for

mandamus jurisdiction, the first question presented in the

petition does not warrant this Court’s review.

Il. THE SIXTH CIRCUIT’S RULING THAT THERE

IS A POWER TO TRANSFER UNDER § 157(b)(5)

IS CORRECT AND IS CONSISTENT WITH DECI-

SIONS OF OTHER COURTS OF APPEALS.

The second question presented by petitioner concerns a

district court’s ability to transfer claims that affect a bank-

ruptcy case: petitioner contends that district courts have no

power under 28 U.S.C. § 157(b)(5) to transfer any claims

that are within the district court’s “related to” bankruptcy

jurisdiction, 28 U.S.C § 1334(b). Pet. 13-17. In other

words, petitioner’s theory is that even if it is indisputable that

claims against non-debtors will have an effect on a bankrupt-

cy case — say, by dissipating joint insurance proceeds that

would otherwise be available to the estate — a district court

would have no authority to transfer such cases to the district

in which the bankruptcy was pending. Rather, a district

court would have the power to transfer only claims asserted

directly against the debtor.

1. No court has ever adopted such an extreme limita-

tion on the power to transfer, which would deprive courts of

the opportunity in mass tort litigation (and in other bank-

ruptcy cases) to achieve a prompt, fair, and complete

At one point (Pet. 9), petitioner quotes a passing statement

in In re United States Brass Corp., 110 F.3d 1261, 1266 (7th Cir.

1997), but that court’s observation, concerning 28 U.S.C. §

1452(b), is clearly dicta. Moreover, that decision does not take

into account Congress’s decision to limit the scope of the statute

by barring review only under certain provisions in Title 28.

15

resolution of all claims that are related to a bankruptcy.

Moreover, there is no disagreement among the courts of

appeals on the question of statutory construction posited by

petitioner. The only other circuit to address the issue

presented here — whether personal injury claims “related to”

a bankruptcy may be transferred under § 157(b)(5) when

those claims are not against the debtor — agrees with the

Sixth Circuit. In Robins, the Fourth Circuit answered that

question in the affirmative, reaching the same conclusion as

that reached by the Sixth Circuit here. See 788 F.2d at 1010

(affirming an order transferring claims against non-debtors to

the district in which the bankruptcy was pending; “[u]nquest-

ionably” the district court “had the power under [§

157(b)(5)] to fix the trial venue in its district for all the

Dalkon Shield cases”) .7

° — Petitioner cites In re United States Lines, 128 B.R. 339

(S.D.N.Y. 1991), for the proposition that § 157(b)(5) is not a

venue-setting provision for claims that are related to a bankruptcy

(Pet. 14-15), but that case involved only claims against the debtor,

not “related to” claims. And the only holding in that case was that

claims pending in state court could not be transferred to federal

court under § 157(b)(5) — a ruling that is no longer good law,

having been rejected by the Second Circuit. See Jn re Pan Am.

Corp., 16 F.3d 513, 516 (2d Cir. 1994) (“the plain language” of

§ 157(b)(5) “authorize[s]” the transfer of cases from state court to

federal court).

’ Petitioner’s contention that the Robins court did not order the

transfer of claims against non-debtors (Pet. 16) is meritless. The

Fourth Circuit unequivocally upheld the district court’s authority

to order the transfor to the Eastern District of Virginia of “all

actions related to the Robins’ Chapter 11 case now pending in any

federal district court or subsequently removed,” including claims

against non-debtors. 788 F.2d at 998 (emphasis added).

16

2. Petitioner’s argument that § 157(b)(5) is limited to

claims “against the debtor” (Pet. 14) is also contrary to the

plain language of the statute. The phrases “against the

debtor” and “against the estate” are nowhere to be found in

§ 157(b)(S); rather, the statute grants district courts the

authority to set the venue for trials of “personal injury tort

and wrongful death claims” generally. Nor is there anything

to the argument that because Congress referred elsewhere in

§ 157 to personal injury claims “against the estate,” it must

have intended to apply this same limiting qualification to the

district court’s powers under § 157(b)(5). See Pet. 15

(quoting § 157(b)(2)(B)). Precisely the opposite is true —

Congress’s decision to qualify personal injury claims in one

section but not in another demonstrates clearly that “Con-

gress, when it desired to do so, knew how to restrict the

scope of” personal injury claims. Patterson, 504 U.S. at 758

(emphasis added). Congress’s use of a “broader phrase” in

§ 157(b)(5) than in § 157(b)(2)(B) “strongly suggests that it

did not intend to restrict the provision in the manner that

petitioner[s] contend[ ].” Jbid.

3. The purpose of § 157(b)(5) is to centralize claims

related to the bankruptcy in one forum in order to facilitate

reorganization. Dow Corning I, 86 F.3d at 496; In re Pan

Am. Corp., 950 F.2d 839, 845 (2d Cir. 1991); Robins, 788

F.2d at 1011. As the court of appeals recognized, the statute

gives district courts the ability, in appropriate cases, to

transfer all personal injury claims “related to” a bankruptcy

because without this power, courts could not eliminate

fragmented, duplicative, and wasteful litigation of “related

to” claims, which would inevitably harm the reorganization

process.” Dow Corning I, 86 F.3d at 496-97. Indeed, if

* Centralization is particularly important with regard to the

Shareholders because, wholly apart from the effect of separate

(continued...)

17

the transfer of “related to” claims were not permitted, there

would be little point in having courts decide whether a suit

involving non-debtors was “related to” a bankruptcy case;

that exercise only makes sense if a court can do something

if the cases are related, like ordering a transfer.

x * *

The Sixth Circuit’s refusal to deprive district courts of

the flexibility to consolidate all related claims in the district

in which the bankruptcy is pending is fully supported by

precedent, logic, and the language of § 157(b)(5). There is

no reason for this Court to grant review on the second

question presented in the petition.

(...continued)

litigation on the debtor’s interest on the joint insurance, “[tJhe

claims against the shareholders arise from an identical set of facts

and are merely duplicates of those against Dow Corning,” which

have “already been transferred to the Eastern District of Michi-

gan.” Pet. App. 9a-10a. As the court of appeals recognized,

requiring plaintiffs seeking compensation for one injury to litigate

the same issues on two fronts — as part of the bankruptcy process

and in state court — would serve only to “expand[ ] an already

overwhelming litigation burden.” Jd. at 10a.

18

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted.

HERBERT L. ZAROV BARBARA J. HOUSER

JAMES C. SCHROEDER Counsel of Record

ROBERT M. Dow, JR. GEORGE H. TARPLEY

Mayer, Brown & Platt Sheinfeld, Maley & Kay P.C.

190 South LaSalle Street 1700 Pacific Avenue, Suite 4400

Chicago, IL 60603 Dallas, TX 75201-4618

(312) 782-0600 (214) 953-0700

Counsel for The Dow Counsel for Dow Corning

Chemical Company Corporation

WILLIAM D. EGGERS

Nixon Hargrave Devans

& Doyle LLP

P.O. Box 1051

Clinton Square

Rochester, NY 14603

(716) 263-1000

Counsel for Corning

OCTOBER 1997 Incorporated