Things Remembered, Inc. v. Petrarca

PETITIONER:Things Remembered, Inc.
RESPONDENT:Petrarca
LOCATION:Seminole Tribe

DOCKET NO.: 94-1530
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 516 US 124 (1995)
ARGUED: Oct 02, 1995
DECIDED: Dec 05, 1995

ADVOCATES:
John C. Weisensell – Argued the cause for the respondent
Steven D. Cundra – Argued the cause for the petitioner

Facts of the case

Anthony Petrarca commenced an action in Ohio state court to collect rent allegedly owed by Child World, Inc. under two commercial leases and to enforce Cole National Corporation’s guarantee of Child World’s performance under the leases. After Child World filed a Chapter 11 bankruptcy petition, Cole’s successor in interest, Things Remembered, Inc., removed the action to federal court under the bankruptcy removal statute and the general federal removal statute. The Bankruptcy Court held that the removal was timely and proper and that it had jurisdiction. The District Court reversed and remanded the case to state court, holding that the removal was untimely and that the Bankruptcy Court lacked jurisdiction. The Court of Appeals dismissed Things Remembered’s appeal for lack of jurisdiction.

Question

May a federal court of appeals review a district court order remanding a bankruptcy case to state court on grounds of untimely removal?

John Paul Stevens:

Mr. Cundra, are you ready?

We’ll now hear argument in Number 94-1530, Things Remembered v. Petrarca.

Mr. Cundra.

Steven D. Cundra:

Justice Stevens, and may it please the Court:

The case before the Court today concerns whether an order of a district court remanding a case on jurisdictional or other than equitable grounds, a case which had been removed pursuant to Federal Bankruptcy Court jurisdiction, may be reviewed for error in the circuit court.

It is petitioner’s contention that the bankruptcy removal statute, 1452 of title 28, which prohibits review in the circuit court of equitable remands does not apply to the remand in this case, as it was on jurisdictional or other than equitable grounds, and that the general removal statute, 1447, has no application in the bankruptcy removal context.

Since neither bar to review is applicable to the remand in this case, which was premised on a demonstrably erroneous holding that the removal was simply untimely, petitioner Things Remembered should be permitted to appeal this remand and to seek the correction of that holding.

John Paul Stevens:

May I ask a preliminary question?

The briefs mainly argue about whether either statute prohibits review.

Would you explain to me what statute grants you the right to review, and in what language?

Steven D. Cundra:

The statute that would grant the right of review would be 158(d), I believe, of title 28, which grants review from final orders or decisions of the district court sitting as an appellate court over bankruptcy matters.

John Paul Stevens:

And is this a final order?

Steven D. Cundra:

I think it is a final order in the context of this Court’s holding in the Cohen case, that it is a… under the collateral order doctrine, it finally determines a disputed issue between the parties, it’s an important issue that doesn’t go to the merits of the controversy, and would be unreviewable on appeal.

John Paul Stevens:

But your theory is it’s a collateral order under Cohen?

That’s–

Steven D. Cundra:

Yes, Justice.

Ruth Bader Ginsburg:

–And you have… you’re relying on the Third Circuit Pacor case for that preliminary… for how you characterize this as a Cohen v. Beneficial–

Steven D. Cundra:

Yes, Justice.

I believe there are other cases which address that issue as well.

Ruth Bader Ginsburg:

–Can you explain to me what sense it would make to say that, in general, removal is not reviewable at all, then we know Congress wanted to take into account a different… to make the remand larger rather than smaller, and then to say… and for that larger, no review but for what was always understood never to be reviewable, suddenly in the bankruptcy context it’s reviewable?

What possible sense does that reading make?

Steven D. Cundra:

One has to consider the context.

The context is the Bankruptcy Reform Act of 1978.

Prior to 1978, this country’s bankruptcy jurisdiction was extremely limited.

The only jurisdiction of the bankruptcy court was that referees in bankruptcy who had the jurisdiction, which was called summary jurisdiction, which was only property in the actual or constructive possession of the court.

There was also plenary jurisdiction, but it was only by consent.

In 1978, Congress determined that the Bankruptcy Act was not being effectively administered… Chapter 11 cases, what are now Chapter 11 cases were not being effectively administered, and it passed a brand new statute with a very broad jurisdiction over all cases arising in, arising under, or related to a bankruptcy case.

And Congress determined that in order to be effective it had to grab all litigation in whatever court, Federal, State, or tribal, and bring it into one central forum so that the bankruptcy court could adjudicate the estate of the debtor and adjudicate in a fair manner consistent with the interests of all creditors, not just the two private litigants, and it created the central forum.

It created a new court which ultimately the delegation of power was so great to an Article I court this Court struck down that statute, or had it amended in the Northern Pipeline and Marathon decision.

But that’s what justified the broad jurisdiction to get all matters before one court.

Steven D. Cundra:

It justified the removal statute, which is unlike any other removal statute, reaching into any court, even a Federal court, to bring a case before the bankruptcy court.

But recognizing there may be inequities in that even though it was to prevent delay of bankruptcy cases, it provided a broad remand power to the bankruptcy judge which would not be reviewable, and that remand power that was not reviewable was not only for decisions to remand but also for decisions not to remand, a bar to appellate review in that context that does not appear in the general removal context, 1447.

A decision not to remand is reviewable under 1447.

A decision not to remand under 1452 is not reviewable, because it’s a discretionary decision.

John Paul Stevens:

May I interrupt you just there?

In… forgetting bankruptcy for a moment, a decision not to remand is reviewable in the ordinary case, you think?

Steven D. Cundra:

Under 1447 a decision not to remand–

John Paul Stevens:

It’s not prohibited, but is that a collateral order, a decision not to remand?

Steven D. Cundra:

–A decision not to remand would not be a collateral order, it would be reviewable at the end of the case.

John Paul Stevens:

Oh, but not immediately reviewable.

Steven D. Cundra:

Not immediately reviewable.

Oh, okay.

Steven D. Cundra:

Subject matter jurisdiction, for instance.

That’s one of the issues here.

Respondent would have this Court read jurisdiction into 1452(b), bar of appellate review, and if you did that, or reinterpret equitable to mean jurisdictional, that means that a district court’s decision not to remand, a district court’s decision to assume jurisdiction where it has no jurisdiction, would not be reviewable.

Anthony M. Kennedy:

Under your theory, if an action within 1452 is removed but the removal is untimely, its motion is made too late under 1446, what authority does the Court have to remand the case back to the State court?

Steven D. Cundra:

In a case of a removal under 1452–

Anthony M. Kennedy:

That’s untimely.

Steven D. Cundra:

–That would be governed by Bankruptcy Rule 9027–

Anthony M. Kennedy:

Well, what about–

Steven D. Cundra:

–Which sets forth the time limits… I’m sorry.

–Yes.

Steven D. Cundra:

And the time limits that are set forth in 9027 can be enlarged by the bankruptcy court under Bankruptcy Rule 9006, and it’s to treat any remand motion as a contested proceeding under 9014.

It can determine what the nature of the relationship is to that estate, how important it is to have that case in order to efficiently adjudicate that debtor’s estate to determine whether that entity is going to be reorganized, or it’s going to be liquidated, whether a major business enterprise will be liquidated or reorganized.

Anthony M. Kennedy:

Perhaps you’ve answered my question in such detail that I couldn’t quite follow it, but my question is, what is the authority of the court to remand a case that is untimely removed, under your theory?

Steven D. Cundra:

In the bankruptcy–

Anthony M. Kennedy:

Because if you say 1447, then we say that your argument fails, so I have to know what your theory is.

Steven D. Cundra:

–In the bankruptcy context, if it has not been properly removed under 1452(a) from a Federal or State court, then it… the court would not have jurisdiction and would have to return it or dismiss it.

The procedure in the bankruptcy context of how you accomplish that is provided by 9027(d), which is a motion to remand, to return the case to the jurisdiction from which it came in the first place if there was no authority to remove it in the first place.

Anthony M. Kennedy:

But under your view, you cannot refer to 1447 for any case that’s removed under 1452, or am I misstating your position?

Steven D. Cundra:

One should not, because they were separate statutory schemes which are both comprehensive in their own domain, and exclusive within their own domain.

They cannot be treated together.

Anthony M. Kennedy:

So much so that there is no express provision for remand of untimely removed cases under 1452.

Steven D. Cundra:

In the statute, it doesn’t use the word remand.

The bankruptcy rule that’s applicable to 1452, proved by this Court, does, and it provides in 9027(d) that would be by a remand motion under 9014 of the bankruptcy rules.

Sandra Day O’Connor:

Well, Mr. Cundra, generally we don’t find any kind of repeal by implication of another statute because a new one’s adopted, and it’s unclear to me why you think that section 1447 does not remain available to a district court even though there may be a bankruptcy proceeding.

I mean, the district court remanded in this case because of a procedural defect, and I don’t see why 1447 wasn’t available to the court to rely upon to get that defect corrected.

Steven D. Cundra:

Under the facts of this case, even if you imported 1447 into 1452–

Sandra Day O’Connor:

Don’t import it.

Just say, it’s still on the books, it’s available to the court, and that’s what the court can look to.

Steven D. Cundra:

–If you were to do that in this case, it would not change the result that there is no basis to bar review of this remand order, because 1447 requires the… to be nonreviewable, the remand order… mot… order, rather, has to comply with 1447(c), and when it comes to procedural defects, you have to make a motion to remand within 30 days, or you waive any objection to an assumption of jurisdiction.

In this case–

John Paul Stevens:

Well, isn’t it also your point that that statute justifies remands to State court, whereas the bankruptcy statute applies to remands to both State and Federal courts.

Steven D. Cundra:

–State, Federal, and tribal–

Sandra Day O’Connor:

Right–

–Yes, but this was a remand to a State court.

Steven D. Cundra:

–Yes, it was.

Sandra Day O’Connor:

So we don’t have some of these other potential problems here.

This was a remand to a State court.

Steven D. Cundra:

It was, but 1447, even if it applied, would not provide a basis for barring appellate review, because the case here that was removed to the bankruptcy court was removed on September 25.

The remand motion wasn’t filed until November 25.

That’s 60 days later, and the only bar to appellate review that’s authorized under 1447(d) and this Court’s holding in Thermtron is a remand motion made in compliance with 1447(c).

A motion on procedural defects 60 days after removal is not in compliance.

Therefore, there would not be a bar–

But I–

Steven D. Cundra:

–under the facts of this case.

Stephen G. Breyer:

–All right.

I don’t know about the facts of this case.

That is to say, I thought we took this case in order to review the relationship of the statutes, not whether some time thing was complied with or not, but I guess we’d have to remand it on that point.

I haven’t thought through that point.

Stephen G. Breyer:

But in terms of the statutes, doesn’t it make what Justice O’Connor just said, perfect sense?

I mean, you have two statutes.

1447 deals with jurisdictional defects and with defects in the removal procedure, and it says there, we’re not going to review those.

Then in the bankruptcy area, quite often there are other bases for remanding.

The other bases are, you say to the judge, do what you think is right.

So they do it on equitable grounds, and that’s covered by 52, and 52 says you can’t review the ones under us, and 47 says you can’t review the technical things under us, and it all seems to make sense.

Now, I’m putting that to you so you can explain why it doesn’t make sense.

Steven D. Cundra:

I believe it doesn’t make sense for the following reasons.

First, you have to relate it to what the basis of the enactment is, which is this broad expansion of jurisdiction in the bankruptcy courts with the corresponding remand, and with jurisdiction not being defined, not delineated by Congress… very broad, related to the case, but not delineated, left to the courts to flesh out that jurisdiction.

Now, that jurisdiction, because bankruptcy courts before only had summary jurisdiction, had no in personam jurisdiction, now that jurisdiction of related-to means all of this litigation we are going to be removing from State or Federal courts that were never removable under bankruptcy before, never.

And how should we delineate that related-to jurisdiction?

Congress didn’t delineate it.

It left it to the courts to delineate it, and since it’s only being delineated or defined by the courts in removal cases, we needed to have the court of appeals review that and establish a Nationwide understanding of what this new jurisdiction is that never existed in our history before.

John Paul Stevens:

But may I interrupt?

Is it not true that in view of the larger docket in the bankruptcy courts they also gave additional grounds for removal on any equitable ground, which presumably might have been intended to pick up the problem in the Thermtron case that if the docket is heavy in that court, they think the case might be disposed of more promptly in the court it was originally filed, therefore they have power to remove.

To remand, I mean.

When you expand the remand power there, doesn’t it seem somewhat inconsistent to say they would… and they said no review of those, so wouldn’t it be more consistent with the overall approach you describe to give the bankruptcy courts greater control over their docket by letting them have final authority on whether or not to remand?

Steven D. Cundra:

Yes.

The context, though, is an expansion in jurisdiction, not an expansion in removal.

John Paul Stevens:

Accompanied by an expansion of the power to remand.

Steven D. Cundra:

Correct.

John Paul Stevens:

On grounds that would not be available in a nonbankruptcy context.

Steven D. Cundra:

The new jurisdiction was so broad–

John Paul Stevens:

Right.

Steven D. Cundra:

–And that you could remove cases from any court to the bankruptcy court, a power never before possessed.

John Paul Stevens:

Well, would you not agree that if they did remand… say this is… a bankruptcy court had a case, a carbon copy of Thermtron, and they decided to remand it, which they could because of their crowded docket.

That remand would not be reviewable.

Steven D. Cundra:

In the bankruptcy context, that’s correct.

Right.

Steven D. Cundra:

The two schemes operate separately and independently of each other.

Ruth Bader Ginsburg:

Suppose the judge in this case said, I’m not 100 percent sure about strict time limit, but I think you should have come here sooner, so for equitable reasons I’m remanding this because I think you dawdled… an equitable notion like laches, no fixed… that would not be reviewable, right?

Steven D. Cundra:

That is correct.

Ruth Bader Ginsburg:

So it’s the judge’s label, what he wants to put on it.

He can make it immune from review if he says, laches.

Steven D. Cundra:

Yes.

Ruth Bader Ginsburg:

But it’s reviewable if he says, time bar under the statute.

Steven D. Cundra:

Yes.

In this case, the bankruptcy court in New York never got to hear this case and make those decisions.

The only bankruptcy court that had an opportunity to review this case was the Ohio Bankruptcy Court, and it found it had jurisdiction, it ordered it transferred to New York, and it said to the home bankruptcy court, so those considerations could be evaluated in the context of the debtor’s case.

And it did not rule on the motion to remand.

It did not rule on extension.

It made no rulings in this case.

It deferred those to the home bankruptcy court who had jurisdiction over the case, but it did find that there was subject matter jurisdiction because the claims were specifically and exclusively addressed in the Bankruptcy Code.

The New York Bankruptcy Court in this case entered an order retaining jurisdiction of this case when it arrived, which order is still in effect.

It found jurisdiction connection with its bankruptcy, but it never got there because of the erroneous holding that a claim removed in 30 days from the time it’s asserted is untimely because the lawsuit in which the new claim had been filed had been pending for some period of time.

And that’s one of the great distinctions between the bankruptcy removal, which is a claim removal statute, a cause of action removal statute.

It does not remove the case.

It’s the only removal statute that is only claim-specific.

The general removal statute is case-general.

You remove the civil action.

Bankruptcy removal jurisdiction is only a claim removal.

You could have a 20-count complaint and remove only one count, the count that related to the bankruptcy, and that’s–

Sandra Day O’Connor:

Well, even if that’s so, I would think that your normal interpretation of statutes would lead you to conclude that the court should retain the power that it has under 1447 to remand cases or to remove them.

I mean, I just don’t see why under your theory we should be so restrictive of the power of these bankruptcy courts.

Steven D. Cundra:

–The power of the bankruptcy courts is much greater.

If they have a question about jurisdiction, all they have to do is remand for an equitable ground.

If they feel they have clear jurisdiction, but–

Sandra Day O’Connor:

There may be other grounds, such as the one in this case, that isn’t equitable, and why shouldn’t they have the power to send it back?

Steven D. Cundra:

–The court… bankruptcy court can simply by determining it’s not going to… if it were late, beyond the 90 days of 905… of the bankruptcy removal versus the general removal, it can either expand that time or not in its discretion, that’s true, and that power does not exist in the general removal statute.

Also under bankruptcy removal, the respondent here can wait a year before he makes his motion to remand, and the court can still decide it.

Steven D. Cundra:

But under the general removal statute, that has to be made in 30 days or is waived, and the judge has no power to raise it sua sponte, a procedural defect.

It’s statutory, 1446(c), and if one were to apply that in this case, then that bar of review for procedural defects does not apply to this case because the motion in the bankruptcy court was filed 60 days later.

Sandra Day O’Connor:

Well, but whether or not it was timely is a question dealt with by the courts below, and we don’t have to address that.

I mean, that’s something that on review at the end of the case can be addressed, but under 1447, there’s no immediate appeal.

Steven D. Cundra:

There is a… under 1447 an immediate appeal if the motion was filed more than 30 days after removal, and then the court remands.

There is no bar to a review of that decision.

It’s only a motion made within 30 days on those grounds that would not be subject to appellate review.

Ruth Bader Ginsburg:

I’m confused by your answer.

I thought under the general removal remand scheme a remand order is not reviewable, period.

Are you telling me that there is something in the 1441 to 1447 regime?

Steven D. Cundra:

Yes.

Ruth Bader Ginsburg:

What?

Steven D. Cundra:

1446(c), which describes the two remand motions that are the subject of 1447(d), which this Court held in Thermtron must be read in pari materia, that it’s a narrow bar to appellate review, and it’s limited by what’s in 1446(c), and what’s in 1446(c) as to procedural defects is a motion made in 30 days on that grounds–

Stephen G. Breyer:

It doesn’t say… I’m sorry.

It doesn’t say on that ground.

I mean, I take it what their answer to this point is going to be is you in fact did… I can’t remember which… I get mixed up here, but whoever wanted it remand, made a motion to remand, all right, and they made it under 52, and the lower court, the district court says, I don’t think I can do it under 52, but I can do it under 47, so he remands it under 47, and certainly he has the authority to go on some other statute, even if the motion that was before him mentioned the wrong statute, and I would think that is what they’re going to say cures the problem of the 30 days, if I have it right.

You can tell me I don’t.

Steven D. Cundra:

–Perhaps respondent better address that in his argument.

But one of the problems that that creates–

Stephen G. Breyer:

I mean, that would strike me as a big problem with this 30-day argument.

Steven D. Cundra:

–The court evaluated it under both removal schemes.

Stephen G. Breyer:

And they remanded it.

The lower court remanded it under 47.

Steven D. Cundra:

The district court remanded–

Stephen G. Breyer:

The district court remanded it under 47, and what you want to do is appeal that remand under 47, and now you want to say that’s not in the case.

Steven D. Cundra:

–I think the court remanded it under both removals.

There was a dual removal here to two different courts.

Antonin Scalia:

And your… let me make sure I understand your argument about the 30-day thing.

If I understand it correctly, it is that you cannot use the second sentence of 1447 in a case where you can’t use the first sentence, that 1447(c) comes all of a piece, and you can’t use the remand authority of 1447(c) in a case where the 30-day time limit is not applicable.

Steven D. Cundra:

Correct.

Steven D. Cundra:

I believe that’s–

Antonin Scalia:

There’s nothing in the text that really says that.

I mean, if the second sentence had begun, if at any time before final judgment in a case properly brought within said 30-day period, comma, then you’d have a good point, but it really doesn’t mention the 30 days in the second sentence.

I mean, what your opponent’s going to say is, we’re not relying on the first sentence of (c).

We’re just relying on the second sentence.

Steven D. Cundra:

–The second sentence is subject matter jurisdiction.

There is no finding of a lack of subject matter jurisdiction here.

The lack of jurisdiction in the words of the district court was the untimely… in the court’s view, an untimely removal, even though it was within 30 days of when the claims were asserted in the action.

Ruth Bader Ginsburg:

And sometimes this Court has said, and a rigid time bar is mandatory and jurisdictional, so do you think that those expression are wrong when they type a rigid time bar, no give, no good cause for extension, as mandatory and jurisdictional?

Steven D. Cundra:

Under the general removal, yes.

Under the general removal, the jurisprudence that’s developed is that any defect of that nature is waived unless a motion is filed within 30 days, and that a court cannot sua sponte dismiss it on the basis of a failure to meet the time.

It’s mandatory, but not jurisdictional, is the jurisprudence that has developed.

With respect to how you interpret (c), or (d), rather, to limit it to the precise matters that are in (c), Justice Scalia, is the holding in Thermtron that the two can’t be read in pari materia, and that the only remands which can evade appellate review are ones that are precisely within the four corners of 1446(c).

Stephen G. Breyer:

Under… what I have from their brief is, it says the bankruptcy court held that TRI had timely removed the case under the general removal statute, namely 47.

Now, is that accurate, and if not, why not?

Steven D. Cundra:

The bankruptcy court found the removal was timely.

Stephen G. Breyer:

And you did not, it says, appeal any aspect of that ruling, is that accurate?

Steven D. Cundra:

The only order that the bankruptcy court entered was an order transferring venue to have the remand decision handled by another court.

The remand decision was not determined in the bankruptcy court.

It was reserved for the home bankruptcy court to make the decision.

Anthony M. Kennedy:

In this case, was it clear that a claim was removed but not the entire case?

Steven D. Cundra:

Yes.

With respect to the amended complaint, the new claims to $12 million that were asserted arising out of the conduct of Child World in the bankruptcy case leaves rejection damages under 502 of the code.

Anthony M. Kennedy:

So your position is that if a claim is removed, then 1447 can’t apply, because 1447 talks about cases.

Steven D. Cundra:

Civil action, removal of the civil action.

You can’t remove a claim under 1441 to 1447.

You either remove the whole action or you don’t.

Antonin Scalia:

Well, what if you removed all the claims in the case?

Haven’t you removed the case?

Steven D. Cundra:

Then you would… yes.

Antonin Scalia:

Have all the claims in this case been removed?

Steven D. Cundra:

Yes.

Anthony M. Kennedy:

I thought your answer would be no.

That was my question.

You–

Steven D. Cundra:

There was a dual removal.

One was of the civil action under 1441, which went to the district–

Anthony M. Kennedy:

–A dual removal.

A dual–

Steven D. Cundra:

–court, and then a separate removal that was done under the bankruptcy, which went to the bankruptcy court in Akron.

They were consolidated later, but at the time relevant here in terms of the timeliness, they were in separate courts under different removal schemes.

Ruth Bader Ginsburg:

–Is it not true that under the general removal scheme you can end up with a claim rather than a case?

That is, under 1441(c), while the case is initially removed, the court can return claims within that case and keep only the separate and independent claim.

Steven D. Cundra:

If there is no basis of Federal or diversity jurisdiction on those other claims, correct.

1441–

Ruth Bader Ginsburg:

But the court would have the option to keep the entire case.

It doesn’t have to.

It can peel off the pieces that would not be independently reviewable, and you end up under 1441(c) with essentially a claim, not a case, removed.

Steven D. Cundra:

–Only, I believe, Justice Ginsburg, if those other claims are separate and independent, and not in any way related or pendent to the claim upon which you’re removing Federal jurisdiction, and I think that’s in 1441, and it provides for remand of the separate and independent claims for which there is no–

Ruth Bader Ginsburg:

It provides for a retention of the separate and independent claim–

Steven D. Cundra:

–Or to remand–

Ruth Bader Ginsburg:

–and the return of the others.

Steven D. Cundra:

–Right, which are remanded.

If I have any more time, I’d like to reserve it for rebuttal.

Thank you.

Steven D. Cundra:

Thank you.

John Paul Stevens:

Mr. Weisensell, you may proceed.

John C. Weisensell:

Justice Stevens, and may it please the Court:

This Court should affirm, consistent with prior decisions of this Court, particularly in Rice and Thermtron, that the Sixth Circuit holding… that this Court should affirm the Sixth Circuit holding that the Sixth Circuit has no jurisdiction under 1447(d) and also under 1452(b) to review the district court order.

Initially, I’d like to address some of the comments that Mr. Cundra made and some of the questions that were posed by some of the justices.

John C. Weisensell:

Justice Ginsburg accurately pointed out in asking Mr. Cundra questions that 1447 does preclude the relief sought here.

There’s nothing anywhere in any of the legislative history, and I believe that Justice O’Connor touched on this also, to indicate that when 1452 was enacted, that there was any intention on Congress’ part to change the provisions in 1447 that provide for remand of cases on a jurisdictional basis or bases in a defect in the removal procedure.

There’s nothing to indicate anywhere an intention to change that, and this Court has held on a number of occasions that it will not repeal legislation simply by implication, whereas the petitioner argues here that since 1452 does not talk about a remand on a jurisdictional basis, that certainly that’s not intended by 1452.

Justice Kennedy also–

William H. Rehnquist:

What would you do with 1447 if a whole case isn’t removed, but just a particular claim?

Would you then say 1447 doesn’t apply?

John C. Weisensell:

–I believe 1447 does apply in that case, Your Honor, depending upon the basis of the remand order.

If it’s a jurisdictional remand or a remand based upon a defect in the removal procedure itself, I think 1447 applies and that case ought to be remanded and there is no review of that order.

Anthony M. Kennedy:

So your position is that the two statutes cover the entire universe of possible remand orders.

John C. Weisensell:

I think… Justice Kennedy, I believe that 1447 covers all jurisdictional remands and all remands on a defect in the procedure of the removal.

I think that 1452(b)–

Antonin Scalia:

To State court.

John C. Weisensell:

–Correct, Your Honor, and that’s–

Antonin Scalia:

Which is a major limitation.

John C. Weisensell:

–And that’s… but that is what we have in this case.

This is a State court–

Antonin Scalia:

I understand that, but in response to Justice Kennedy you have to acknowledge that there’s a big hole.

1447 only covers remand to State courts.

John C. Weisensell:

–I believe that’s correct, Your Honor.

Antonin Scalia:

So the whole of the universe is not covered.

Of… and it talks only about cases.

John C. Weisensell:

1447 does talk about removal of cases.

John Paul Stevens:

You use the term civil action in 1446–

John C. Weisensell:

Civil action.

John Paul Stevens:

–so it is entire cases, yes.

John C. Weisensell:

And any case removed from a State court, the district court may issue all necessary orders, et cetera.

Getting back to the question, Justice Kennedy, 1452 I believe only provides for an additional basis for remand in bankruptcy cases.

There’s… again, I’ll get back to the point I made earlier.

There’s no indication, no intention that that was going to change the 1447 remands and the fact that those types of orders are not reviewable, and in this case, this case was not removed… excuse me, was not remanded on a basis that is provided for under 1452.

The petitioner wants this Court to take a strict constructionist view of that statute, and… but they skip the first sentence of the statute.

John C. Weisensell:

They want the Court to jump right to the second sentence of 1452(b), which provides that in order entered under this subsection remanding a claim or cause of action or a decision to not remand is not reviewable by appeal or otherwise.

Well, in order to get to that point, you need to look back to what are they talking about under this section, the court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground.

That provides for an additional basis for remand in bankruptcy cases, and this case was clearly not remanded on an equitable ground, so you don’t get to the second sentence of that section.

Antonin Scalia:

What do you do with a remand that is not on an equitable ground as you interpret what equitable ground means… it’s on a jurisdictional ground… but the remand is not to a State court?

John C. Weisensell:

I think–

Antonin Scalia:

What is that governed by?

John C. Weisensell:

–I think under that situation, Your Honor, you need to look to the legislative history that has developed since 1887 where this… and then interpretations of this Court of remand orders generally that provide that those types of orders are not reviewable for the reasons of judicial economy and the fact that parties should not be litigating over where to litigate.

That’s the point that’s–

Antonin Scalia:

You say it’s not covered by this statute, however.

John C. Weisensell:

–I don’t believe that it is, Your Honor.

Stephen G. Breyer:

So then it’s Thermtron, is that right?

John C. Weisensell:

I believe so, whether or not–

Stephen G. Breyer:

So anything that’s not… I mean, in a nonbankruptcy case, outside the jurisdictional and defect in removal proceeding area, Thermtron, and so the answer would be the same.

John C. Weisensell:

–Well, 1447 provides for remands on jurisdictional bases.

If it’s on a jurisdictional bases, I believe that you are within the statute, so you don’t get to that–

Sandra Day O’Connor:

Oh, but just a State court, so that brings us back.

Suppose it’s to some other State agency or some other court.

John C. Weisensell:

–I think that that may be correct, Your Honor, but again in this case this is a removal from a State court, and also a remand to a State court, and I believe you do tie back into 1447 on that basis in this particular case.

Ruth Bader Ginsburg:

How frequent are removals from… of the Federal district court, that’s even strange language, because every other place where there is transportation within the Federal system it’s called transfer and not removal.

John C. Weisensell:

That’s correct, Your Honor, and although the petitioner does point out an example in their brief, frankly, in my 10 years of practice I have never seen a case that has been removed from another Federal court to a bankruptcy court.

Antonin Scalia:

You will acknowledge that this is not a tightly drawn statutory scheme.

John C. Weisensell:

I… particularly the 1452 sections, subsection (a) and subsection (b) of 1452, and I think the reason for that again, Your Honor, is that Congress had the whole legislative history of 1447 and what led up to that and the act of 1887 and 100 years of the statute and the history behind that and the interpretations of this Court before it when it enacted the Bankruptcy Reform Act of 1978, which put in place I believe it was 1478 at that time, which became 1452, and I believe that’s the reason why there is no further delineation.

The Congress could certainly have said in 1452 that it expressly intended that these particular orders would be the only kinds of orders that there would not be a review of, and it didn’t say that, and that gets back to my point earlier that this Court has held on occasions that it will not repeal legislation by implication.

Where there’s a statute that does not specifically repeal a prior code section, this Court is not going to do that as well.

Antonin Scalia:

And you assert that we have inherent authority to preclude not just immediate review, but to preclude all review of the decision to remand in cases that fall between these two statutes.

That is, where the remand is not to a State court and therefore not covered by 1447, but on the other hand, the remand is not for equitable reasons.

You say that in that situation, we have inherent authority simply to decline review.

I mean, I can understand that we might have some authority to say we won’t review it right away.

We won’t allow an interlocutory review.

But to say, we won’t review it at all–

John C. Weisensell:

Well, I believe the code sections say, Your Honor, that in order… remanding or deciding not to remand is not reviewable by the court of appeals or by the United States Supreme Court by appeal or otherwise.

Ruth Bader Ginsburg:

–Ever.

John C. Weisensell:

I’d say the answer’s yes.

Pardon me, Your Honor?

Ruth Bader Ginsburg:

Ever.

You couldn’t do it at the end of the trail, either.

They’re just simply not reviewable, remand decisions.

John C. Weisensell:

Well–

Ruth Bader Ginsburg:

Suppose you remand a case to State court, you couldn’t at the end of the line come back and argue to the U.S. Supreme Court, well, there was a misconstruction of the remand statute so we should not have had to suffer the State court judgment.

John C. Weisensell:

–I believe in the situation that Your Honor just indicated I think the answer’s yes, that is not reviewable, although as Mr. Cundra indicated, the question of jurisdiction itself could be reviewed if the case is retained by the Federal court at the end of–

Ruth Bader Ginsburg:

Yes, if it’s retained–

John C. Weisensell:

–that litigation.

Ruth Bader Ginsburg:

–because subject matter jurisdiction is always reviewable.

John C. Weisensell:

Correct.

Correct, but I believe if the case is remanded our position, and it’s supported by the statutes, is that it is not reviewable.

Ruth Bader Ginsburg:

But once you remand it to the State court, that’s it.

That question is not going to come up to a Federal forum.

John C. Weisensell:

Correct, and that’s the intention of the statute, is to get on with the litigation, and that’s the whole point of why we’re here.

I think this is an important… the Bankruptcy Reform Act was intended to be a fair and credible statute, and to operate quickly and efficiently, and to have these disputes resolved.

Now we’re here, 3-1/2 years, going on 4 years after this simple State court breach of contract action was filed in Summit County, Ohio.

We’re here coming up on 4 years on this case, and we haven’t litigated anything other than the question of where this case ought to be litigated.

Now, the petitioner had indicated in its reply brief that that’s because we didn’t do anything to prosecute that case in the interim.

That is not… not necessarily correct, Your Honor, because we did attempt to have… and this ties in with the question that I believe Justice Kennedy had earlier of whether or not in this case was there a claim removed, or was the entire case removed, and I believe Mr. Cundra indicated that the entire case was removed, which is also why you get back to 1447.

But we have attempted to litigate this case.

We filed a motion in the State court to have a status conference set and get a trial date, and the petitioner’s response there was that the trial court had absolutely no jurisdiction over that case because the entire case had been removed and was now pending before the United States Supreme Court.

So we have attempted to litigate those issues, and we’ve been estopped from doing that because there is no jurisdiction in the State court because the entire case has been removed, which answers the question of whether this was a claim or a case that was removed.

The entire case was removed.

It was removed from a State court, and it was remanded on jurisdictional grounds.

I think that ties you directly back in to 1447, and the order is not reviewable, on appeal or otherwise, by the Sixth Circuit or even by this Court.

Mr. Cundra indicated that somehow there was a defect in the remand procedure because the order… or, excuse me, the motion to remand was filed sometime in November of 1992.

John C. Weisensell:

It’s correct, as he indicates, that there were two separate removals.

One was a removal to the bankruptcy court, and one was another removal to the district court.

Those were ultimately consolidated.

There were two separate remand motions filed.

One was filed on October 23 of 1992, and if you look at the joint appendix at page 2a, it gives you the chronology of those events.

That’s well within the 30 days provided for the time to file the remand motion.

Those cases were then consolidated, and Judge White of the bankruptcy court addressed that issue and found that the motion had been timely filed.

At any rate, this argument, similar to other arguments, as we indicate in our brief were not preserved because the petitioner did not complain about the results that came out of the bankruptcy court.

They were satisfied with the fact that the bankruptcy judge was going to ship the case off to New York, so when we filed our appeal, they didn’t appeal any of those rulings.

And I would analogize this to, let’s say, a personal injury case where a plaintiff files a personal injury action and gets a plaintiffs’ verdict, but for an amount that maybe that person is not necessarily satisfied with, or the defendant files a notice of appeal on the liability issue.

The plaintiff cannot sit back and go through that whole procedure at the court of appeals and then come to this Court or to the court of appeals and argue at oral argument that they want to have the case… have an additional amount of judgment, that they’re appealing the amount of the verdict that was rendered in their favor.

In this case, they’ve waived their right to raise a number of these arguments that they’re raising now.

There was a question posed as to whether or not Thermtron in the bankruptcy context reaches the correct result, that being that in the bankruptcy context, if the case is… if, for example, the bankruptcy judge says that my docket is too crowded and I want to remand this, petitioner’s position is that under 1452, that that’s the correct result.

Well, that just doesn’t make sense.

That flies in the face of the history behind this Court and this Court’s decisions on the basis for remand.

The bankruptcy court itself did rule on the motion to remand.

Mr. Cundra indicated that the bankruptcy court did not do that.

The bankruptcy court found that the removal was not timely.

The bankruptcy court also found, as I believe Justice Kennedy pointed out, that the general removal was timely, and again, that ties back into our argument that we’re here on the 1447 question, not on the 1452 question.

Ruth Bader Ginsburg:

Do I understand your view on 1452 to be it’s essentially supplemental, it applies to the extent that it applies, and to the extent that there’s any hole, you still have the basic removal remand scheme?

John C. Weisensell:

Yes, Your Honor.

That’s–

John C. Weisensell:

Yes.

1452 is supplemental.

It provides an additional basis for remand in bankruptcy cases.

Anthony M. Kennedy:

–Well, it applies both as an additional basis for removal and… no, an additional basis for remand.

That’s right.

John C. Weisensell:

Correct.

Yes.

John C. Weisensell:

Justice Scalia asked Mr. Cundra a question concerning how to read the 1447 statute, and I think that that was an astute question, Your Honor, because even though they’re asking this Court for a strict constructionist view of the statute, in their brief they in fact insert the language that you suggested that would need to be inserted into 1447 in order to reach the result that petitioner wants to reach.

John C. Weisensell:

At page 26, they say that the language of 1447(b) actually reads as follows: an order remanding a case, and then they have in parenthetical, for lack of subject matter jurisdiction to the State court from which it was removed, by filing of a notice of removal… again, that’s in parentheticals… pursuant to section 1446(a) is not reviewable on appeal or otherwise.

Although they’re asking this Court to strictly construe the statutes, and particularly 1452, they want to insert language into 1447.

Anthony M. Kennedy:

Of course, they’re relying on Thermtron, I guess, for doing that, aren’t they?

John C. Weisensell:

I don’t understand, Your Honor.

Anthony M. Kennedy:

Well, Thermtron made it… said that you don’t read 1447(d) as broadly as the plain language suggests, because–

John C. Weisensell:

Well–

Anthony M. Kennedy:

–there is a category of removals that is reviewable by mandamus.

John C. Weisensell:

–That’s correct.

If there is a basis that is not provided in any statute anywhere–

Yes.

John C. Weisensell:

–which, again, I don’t believe is this case, because I think you… that this is properly not reviewable under 1447.

Ruth Bader Ginsburg:

Well, it was something more than just not provided for.

It was an off-the-wall category, the mandamus.

John C. Weisensell:

I would agree with you, Your Honor, in the Thermtron case.

The petitioner’s argument, and one of the justices, and I don’t recall which one, indicated that if you accept their argument there is no mechanism to remand cases where there is no jurisdiction under a 1452 removal, that’s correct, and that is the basis why 1447 then applies in those cases.

1452 creates an additional basis, but you still have 1447 in the jurisdictional cases.

Otherwise, in a 1452 case where there is no jurisdiction, the court’s stuck with the case, and they can’t remand it.

Anthony M. Kennedy:

But I take it you have to accept that result if the removal was from a Federal court.

John C. Weisensell:

Pardon me, Your Honor?

Anthony M. Kennedy:

If the removal was from a Federal court rather than a State court, would not that anomaly exist, that there would be no statutory basis for remand–

John C. Weisensell:

I suppose–

Anthony M. Kennedy:

–if there was no jurisdiction to remove?

John C. Weisensell:

–I suppose it would, but there have been decisions from this Court that have held in that situation that the court would have jurisdiction to simply dismiss the case at that point.

Antonin Scalia:

Well, that may be, but I mean, whatever other good arguments you might have, one of your good ones is not, my opponent’s position leaves a big hole that isn’t covered by either of the provisions, because your solution leaves a big hole that isn’t covered by any–

John C. Weisensell:

Well–

Antonin Scalia:

–of the provisions as well.

John C. Weisensell:

–That’s correct.

Antonin Scalia:

And you say, well, we’re just going to have to fumble around and do our best with that, and I suppose your opponent says the same thing.

John C. Weisensell:

That’s correct, Your Honor.

Antonin Scalia:

So let’s call the hole-in-the-statute argument a draw.

Antonin Scalia:

[Laughter]

John C. Weisensell:

Okay.

Stephen G. Breyer:

Why is there a hole in the statute?

I’m just testing my own understanding of it, but forget bankruptcy.

Outside the bankruptcy area there are all kinds of cases where people remove cases, and then they ask for remand, and there is the case where you’re remanding on a jurisdictional ground, or a defect in removal proceeding ground, and there may be other grounds, I don’t know.

There could be a million grounds, and the ones… the jurisdictional or removal defect are covered by 47, and the others are covered by Thermtron.

Is that right?

I’m asking because I’m trying to–

John C. Weisensell:

I think that’s correct–

–Outside bankruptcy.

John C. Weisensell:

–but I think I… unfortunately I think I also need to concede that there still is a hole in the statute for cases that are not removed from State court.

Stephen G. Breyer:

Well, they would simply be governed by Thermtron, because anything not covered under the statute… I mean, I can call it a hole or not a hole, I just–

–And Thermtron is not a statute.

No, that’s right.

That’s right.

And he’s conceding that Thermtron is not a statute.

But it’s not un… I’m trying to figure out how unusual it is.

Well, there would be no hole in the statute if you construed the word equitable to read appropriate.

Then there would be no hole in the statute.

John C. Weisensell:

If you construed it that way, certainly, and one of our arguments is also that 1452 includes jurisdiction within it.

I was responding to points that–

Right, I understand.

John C. Weisensell:

–Mr. Cundra made, and I haven’t really had a chance to–

You have an alternative ground–

John C. Weisensell:

–get into my portion of it, but–

–that there is no hole in the statute.

John C. Weisensell:

–Correct, Your Honor.

Yes.

John C. Weisensell:

And that is–

John Paul Stevens:

That’s your alternative argument.

John C. Weisensell:

–And that relates back to the legislative history behind 1452, where they talk about such things in that legislative history as jurisdiction by ambush, and it’s not equitable for a party to be subject to jurisdiction in some distant bankruptcy court when all they have is a simple State court action that they’re entitled to have and have a right to have litigated in the State forum of their choice, which is precisely our case here.

We filed a simple State court breach of contract action in Summit County Common Pleas Court 3-1/2 years ago, going on 4, it’s been removed, their attempt to have it removed to some distant bankruptcy court in New York.

It’s precisely the type of situation that’s covered by the legislative history of 1452, which uses terms like equity and jurisdiction, to me it appears as interchangeably in that legislative history, and that’s why I believe that the legislative history of 1452 intended to include that within the word equitable, I believe the layman’s term use of the word equitable as opposed to what you or I or other lawyers might mean by that term when they use that term in another context.

Ruth Bader Ginsburg:

Why does it have to be the layman’s approach?

You are giving alternative arguments.

One is that 1452 is an add-on.

It doesn’t displace 1441 to 1447.

The other is, it is self-contained, but a judge in deciding what is equitable, what is appropriate, can say the closest thing that I have is the scheme of 1441 to 1447, so I will plug that into the word equitable.

It is equitable, appropriate, to remand on any ground that a court would have remanded under in 14… under the 1441 to 1447 regime.

John C. Weisensell:

Your Honor, I believe that’s a slightly different interpretation, but it serves the purpose, and I would agree with your analysis that you can plug that in, and in fact a portion of the legislative history does indicate, and I’m citing to the House report and Senate report at the time of the enactment of the Bankruptcy Reform Act.

And I’m on page 51 thereof, where it indicates presumably an order of the bankruptcy court refusing to accept jurisdiction and in effect remanding the matter to another court would not be appealable in the same manner that an order of the United States district court remanding a case to the State court from which it was removed is not reviewable, on appeal or otherwise.

And then they footnote there as authority for that 28 U.S.C. 1447(d), and also this Court’s decisions in a number of cases, including the Thermtron case, so Congress was aware of the 1447 scheme at the time that it enacted 1447, and I think your analysis can also be used to plug that in as a 1452.

Just one other point, Your Honors.

As we indicated in our brief, there are a number of other special removal statutes, and we cited a couple of cases under the Federal Drivers Act, and also under the Financial Institutions Reform Recovery and Enforcement Act, and those cases, in those statutes there are specific removal and remand provisions that are set up.

And those cases also indicate, although they are not decisions of this Court, they are decisions from other circuit courts of appeals, that in enacting those statutes, that Congress did not intend to set aside 1447 and in fact 1447 does apply to those other statutes that also have very specific remand… removal and remand procedures.

I cite the Court to that authority which again is not from this Court, it’s from other circuit courts of appeals, but as authority for the congressional intent not to repeal by implication 1447 at the time that it enacted 1452.

And if there are no further questions, I’m concluded.

John Paul Stevens:

Mr. Cundra, you have about 2 minutes.

Steven D. Cundra:

Thank you, Justice Stevens.

Two quick points.

The concept of reading jurisdiction into 1452, whether you consider it equitable to do that or import 1447 or not, cannot… would fundamentally change the law of jurisdiction that’s ever existed with respect to removal and remand, because 1452 deals with the decisions not to remand as well, so retention of jurisdiction under 1452 would be forever unreviewable by any court.

1447–

David H. Souter:

–at the end of the final judgment.

Steven D. Cundra:

–I’m sorry?

David H. Souter:

Why wouldn’t it be reviewable when they get a final judgment?

Steven D. Cundra:

It says a decision not to remand under 1452 never be reviewed by appeal or otherwise at any time.

That’s an absolute bar.

It’s not just a–

Antonin Scalia:

It even mentions the Supreme Court of the United States explicitly.

Steven D. Cundra:

–Yes.

Stephen G. Breyer:

I mean, but the obvious… I mean, I don’t know if that means that when it’s part of the final judgment you wouldn’t look to see if the court was without jurisdiction.

I mean, normally, the “or otherwise” is because you often review on mandamus.

It really means you never could even look to jurisdiction.

Steven D. Cundra:

That would be the result, because that’s the only statute that makes unreviewable a decision not to remand.

There are decisions to remand that are unreviewable, but that’s the only one that makes a decision not to remand unreviewable.

Ruth Bader Ginsburg:

But if it was really a case of subject matter jurisdiction, the Constitution would trump any such statute, right, because Article III says what Congress can tell the Federal court they can do.

Steven D. Cundra:

One would hope.

Ruth Bader Ginsburg:

So subject matter jurisdiction is always reviewable because of the limitation on… the constitutional limitation on the court’s authority.

Steven D. Cundra:

Which then, reading it in would make it unconstitutional, the statute to be read as including jurisdiction would render it unconstitutional.

The two schemes do not relate to each other.

Not only do they relate not on the issue of remand or not to remand, one is bankruptcies of a cause of action, 1447 is the whole case.

Bankruptcies, any plaintiff, any defendant, any other party, and the second scheme, general, is only all defendants–

John Paul Stevens:

Mr. Cundra, I think we have your position.

Your time has expired.

Thank you.

The case is submitted.