Things Remembered v. Petrarca

• Decision Date: 05 December 1995
• Docket Number: 941530
• Citation: 133 L.Ed.2d 461,116 S.Ct. 494,516 U.S. 124
• Parties: THINGS REMEMBERED, INC., Petitioner, v. Anthony A. PETRARCA
• Court: U.S. Supreme Court

516 U.S. 124

116 S.Ct. 494

133 L.Ed.2d 461

THINGS REMEMBERED, INC., Petitioner,

v Anthony A. PETRARCA.

No. 94-1530.

Supreme Court of the United States

Argued Oct. 2, 1995.

Decided Dec. 5, 1995.

Syllabus ^*

Respondent commenced this 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 guaranty of Child World's performance under the leases. After Child World filed a Chapter 11 bankruptcy petition, Cole's successor in interest, petitioner here, removed the action to federal court under the bankruptcy removal statute, 28 U.S.C. § 1452(a), and the general federal removal statute, § 1441(a). The Bankruptcy Court held that the removal was timely and proper, and that it had jurisdiction. The District Court reversed and, in effect, remanded the case to state court, holding that the removal was untimely under §§ 1441(a) and 1452(a) and that the Bankruptcy Court lacked jurisdiction. The Sixth Circuit dismissed petitioner's appeal for lack of jurisdiction, holding that §§ 1447(d) and 1452(b) barred appellate review of the District Court's remand order.

Held: If an order remands a removed bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, a court of appeals lacks jurisdiction to review the order under § 1447(d). That section, a provision of the general removal statute, bars appellate review of any "order remanding a case to the State court from which it was removed." Under Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-346, 96 S.Ct. 584, 590-591, 46 L.Ed.2d 542, § 1447(d) must be read in pari materia with § 1447(c), so that only remands based on the grounds recognized by § 1447(c), i.e., a timely raised defect in removal procedure or lack of subject-matter jurisdiction, are immune from review under § 1447(d). Section 1447(d) bars review here, since the District Court's order remanded the case to "the State court from which it was removed," and untimely removal is precisely the type of removal defect contemplated by § 1447(c). The same conclusion pertains regardless of whether the case was removed under § 1441(a) or § 1452(a). Section 1447(d) applies "not only to remand[s] . . . under [the general removal statute], but to orders of remand made in cases removed under any other statutes." United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 839, 90 L.Ed. 982 (emphasis added). Moreover, there is no indication that Congress intended § 1452 to be the exclusive provision governing removals and remands in bankruptcy or to exclude bankruptcy cases from § 1447(d)'s coverage. Although § 1452(b) expressly precludes review of certain remand decisions in bankruptcy cases, there is no reason §§ 1447(d) and 1452 cannot comfortably coexist in the bankruptcy context. The Court must, therefore, give effect to both. Pp. 496-497.

Affirmed.

THOMAS, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which GINSBURG, J., joined. GINSBURG, J., filed a concurring opinion, in which STEVENS, J., joined.

Steven D. Cundra, Washington, DC, for petitioner.

John C. Weisensell, Akron, OH, for respondent.

Justice THOMAS delivered the opinion of the Court.

We decide in this case whether a federal court of appeals may review a district court order remanding a bankruptcy case to state court on grounds of untimely removal.

I

Respondent commenced this action in March 1992 by filing a four-count complaint against Child World, Inc. and Cole National Corporation in the Court of Common Pleas in Summit County, Ohio. The state action charged Child World with failure to pa y rent under two commercial leases. The complaint also sought to enforce Cole's guaranty of Child World's performance under the leases. Petitioner is Cole's successor in interest.

On May 6, 1992, Child World filed a Chapter 11 petition in the United States Bankruptcy Court for the Southern District of New York. On September 25, 1992, petitioner filed notices of removal in both the United States District and Bankruptcy Courts for the Northern District of Ohio. Petitioner based its removal on the bankruptcy removal statute, 28 U.S.C. § 1452(a) (1988 ed.),¹ as well as the general federal removal statute, 28 U.S.C. § 1441(a) (1988 ed.). Petitioner also filed a motion in the District Court to transfer venue to the Bankruptcy Court in the Southern District of New York, so that respondent's guaranty claims could be resolved in the same forum as the underlying lease claims against Child World. Respondent countered by filing motions to remand in the District Court on October 23, 1992, and in the Bankruptcy Court on November 25, 1992.

The District Court consolidated all proceedings in the Bankruptcy Court on March 25, 1993. The Bankruptcy Court held that petitioner's removal was untimely under 28 U.S.C. § 1452(a) and Federal Rule of Bankruptcy Procedure 9027 but that the action had been timely removed under 28 U.S.C. §§ 1441 and 1446 (1988 ed.). The Court concluded that removal was proper and that it had jurisdiction over the removed case. The Court then granted petitioner's motion to transfer venue to the Bankruptcy Court in the Southern District of New York.

Respondent appealed to the District Court in the Northern District of Ohio. The District Court found removal under both §§ 1441(a) and 1452(a) to be untimely and held that the Bankruptcy Court lacked jurisdiction over the case. The District Court reversed the judgment of the Bankruptcy Court and remanded to that Court for further proceedings consistent with the District Court's opinion.²

Petitioner appealed the District Court's order to the Court of Appeals for the Sixth Circuit. In an unpublished disposition, the Sixth Circuit held that §§ 1447(d) and 1452(b) barred appellate review of the District Court's remand order. The Court of Appeals then dismissed the appeal for lack of jurisdiction. We granted certiorari, 514 U.S. ----, 115 S.Ct. 1821, 131 L.Ed.2d 743 (1995), and now affirm.

II

Congress has placed broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court. The general statutory provision governing the reviewability of remand orders is 28 U.S.C. § 1447(d) (1988 ed.). That section provides:

"An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise."

As we explained in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), § 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d). Id., at 345-346, 96 S.Ct., at 590-591. As long as a district court's remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction—the grounds for remand recognized by § 1447(c)—a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).

Section 1447(d) bars appellate review of the remand order in this case. As noted, § 1447(d) precludes appellate review of any order "remanding a case to the State court from which it was removed." The parties do not dispute that the District Court's order remanded this case to the Ohio state court from which it came. There is also no dispute that the District Court remanded this case on grounds of untimely removal, precisely the type of removal defect contemplated by § 1447(c).³ Section 1447(d) thus compels the conclusion that the District Court's order is "not reviewable on appeal or otherwise." See Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam).

We reach the same conclusion regardless of whether removal was effected pursuant to § 1441(a) or § 1452(a). Section 1447(d) applies "not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well." United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 839, 90 L.Ed. 982 (1946) (emphasis added).⁴ Absent a clear statutory command to the contrary, we assume that Congress is "aware of the universality of th[e] practice" of denying appellate review of remand orders when Congress creates a new ground for removal. Ibid.

There is no express indication in § 1452 that Congress intended that statute to be the exclusive provision governing removals and remands in bankruptcy. Nor is there any reason to infer from § 1447(d) that Congress intended to exclude bankruptcy cases from its coverage. The fact that § 1452 contains its own provision governing certain types of remands in bankruptcy, see § 1452(b) (authorizing remand on "any equitable ground" and precluding appellate review of any decision to remand or not to remand on this basis), does not change our conclusion. There is no reason §§ 1447(d) and 1452 cannot comfortably coexist in the bankruptcy context. We must, therefore, give effect to both. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992).

If an order remands a bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, then a court of appeals lacks jurisdiction to review that order under § 1447(d), regardless of whether the case was removed under § 1441(a) or § 1452(a). The remand at issue falls squarely within § 1447(d), and the order is not reviewable on appeal.

The judgment of the Court of Appeals for the Sixth Circuit is affirmed.

It is so ordered.

Justice KENNEDY, with whom Justice GINSBURG joins, concurring.

I join the Court's opinion but write to point out that ...