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

958 F.2d 295, 1992 WL 39516
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 5, 1992
DocketNo. 90-16846
StatusPublished
Cited by20 cases

This text of 958 F.2d 295 (Hellon & Associates, Inc. v. Phoenix Resort Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hellon & Associates, Inc. v. Phoenix Resort Corp., 958 F.2d 295, 1992 WL 39516 (9th Cir. 1992).

Opinion

FERNANDEZ, Circuit Judge:

The Resolution Trust Corporation (RTC), in its capacity as the receiver for Lincoln Savings & Loan Association (Lincoln) sought to remove this action to the United States District Court for the District of Arizona. It based its notice of removal on the general removal provision, 28 U.S.C. § 1441(a), and on the special RTC removal provision, 12 U.S.C. § 1441a(Z )(3). The district court found that removal was improper under each section and remanded the case to the Maricopa County Superior [297]*297Court.1 We reverse as to the section 1441(a) determination and vacate the order of remand.

BACKGROUND

This is a contest over removal procedures, and the real dispute between the parties is of no significant importance to the resolution of the issues we now face. Thus, we will touch upon the background facts very lightly. Simply put, Hellon & Associates, Iric. (Hellon) asserts that it had a contract with the predecessor of Lincoln. According to Hellon, it was to attempt to reduce certain secured state personal property taxes; it did so, but the predecessor breached that contract. Hellon filed this action against the predecessor in the Mari-copa County Superior Court in Arizona. By that time the predecessor was under federal receivership. In a metamorphosis that is common in this area, Lincoln arose from the ashes of its predecessor and RTC ultimately became Lincoln’s receiver.2 RTC then sought to remove this action to the United States District Court.3 It was rebuffed on two bases. The district court determined that RTC cannot use the general removal provisions of 28 U.S.C. § 1441(a), and that if it sought to use the specific provisions of 12 U.S.C. § 1441a(i)(3) it could not remove the case to the district court in Arizona, but was required to remove it to the United States District Court for the District of Columbia. We disagree with the former interpretation and need not decide the latter.

STANDARD OF REVIEW; GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION

This case presents a question of statutory construction. That is a question of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Moreover, removal of cases from the state courts to the federal court raise questions of federal subject matter jurisdiction which we review de novo. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir.1988).

Certain general principles of statutory construction also directly impact our decision of this case, both as to appellate jurisdiction and as to resolution of the removal issues.

First, if the statutory language is clear, we need look no further than that language itself in determining the meaning of the statute. See Sullivan v. Stroop, 496 U.S. 478, 110 S.Ct. 2499, 2502-03, 110 L.Ed.2d 438 (1990); United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). Certainly that is true if there is no “ ‘clearly expressed congressional intention to the contrary.’ ” Noriega-Sandoval v. INS, 911 F.2d 258, 260 (9th Cir.1990) (citation omitted). Second, to the extent that statutes can be harmonized, they should be, but in case of an irreconcilable inconsistency between them the later and more specific statute usually controls the earlier and more general one. Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 490 n. 8 (9th Cir.1984), cert. denied, 471 U.S. 1140, 105 S.Ct. 2686, 86 L.Ed.2d 703 (1985). Finally, “ ‘Congress must be presumed to have known of its former legislation ... and to have passed ... new laws in view of the provisions of the legislation already enacted.’ ” Owner-Operators Indep. Drivers Ass’n of Am., Inc. v. Skinner, 931 F.2d 582, 586 (9th Cir.1991) (citation omitted).

JURISDICTION

The district court essentially determined that this case had been improvident[298]*298ly removed and that the court lacked jurisdiction. The general rule is that we lack jurisdiction to review that type of district court order. Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986). That is compelled by 28 U.S.C. § 1447(d), but it even applies when the actual removal statute is a specific provision that appears in a title other than Title 28. See FSLIC v. Frumenti Dev. Corp., 857 F.2d 665, 669-71 (9th Cir.1988).

The general rule does not apply in this case. In Frumenti we noted that when it came to the area of the law that this case deals with, the general rule did not work well but that Congress would have to provide for the solution. Congress has done just that. In section 1441a(i )(3) Congress stated: “The Corporation [RTC] may appeal any order of remand entered by a United States district court.” This specific provision was enacted for the purpose of having removal decisions in this exceedingly important class of cases subjected to appellate review. Since a specific provision must control a more general one, it seems pellucid that 28 U.S.C. § 1447(d) does not affect our jurisdiction.

However, Hellon asserts that because the quoted provision appears in section 1441a(i )(3), it can only apply to the removal provisions of that section. We disagree. Had Congress intended to limit the grant of appellate jurisdiction to those provisions alone it could easily have said so. In adopting the language in question Congress was well aware of the contrary provisions of section 1447(d) and still used the expansive language “any order of remand....” See In re RTC, 888 F.2d 57, 59 (8th Cir.1989) (the section even applies to cases previously removed by FSLIC because that carries out congressional intent to expand federal power in this area), appeal dismissed as moot, 901 F.2d 694 (8th Cir.1990).

Thus, what seems pellucid is. We do have jurisdiction to consider this appeal from both prongs of the district court’s remand order.

DISCUSSION

A. Removal Under 28 U.S.C. § mm.

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Bluebook (online)
958 F.2d 295, 1992 WL 39516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hellon-associates-inc-v-phoenix-resort-corp-ca9-1992.