THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, ET AL., PETITIONERS V. BEN COOPER, INC. No. 89-1784 In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Motion On Behalf Of The United States For Leave To Intervene The Solicitor General, on behalf of the United States, moves for leave to intervene as a party in this case. 1. On June 28, 1990, this Court granted the petition for a writ of certiorari. 110 S. Ct. 3269. The petition presents two questions for review: (1) "Whether the post-petition status of the contract underlying this case requires a core designation pursuant to 28 U.S.C. Section 157 when the contract dispute could exist independent of the Chapter 11 bankruptcy proceeding and is based solely on state law claims"; and (2) "Whether a jury trial of this case in the bankruptcy court comports with article III and the seventh amendment of the Constitution when an article I judge presides over the trial subject only to appellate review in the district court." 2. Because the constitutionality of an Act of Congress affecting the public interest is drawn in question in this case, cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the United States may intervene as of right under 28 U.S.C. 2403(a). /*/ That Section applies "(i)n any action, suit or proceeding in a court of the United States"; 28 U.S.C. 451 defines "court of the United States" to include this Court. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice Section 6.16, at 341 (6th ed. 1986) (28 U.S.C. 2403 "applies to the Supreme Court as well as the lower federal courts"). Section 2403(a) by its terms accords the United States "all the rights of a party." 3. To effectuate the United States' right to intervene, 28 U.S.C. 2403(a) further provides that the Attorney General be notified of "any" case wherein "the constitutionality of any Act of Congress affecting the public interest is drawn in question." Accordingly, Federal Rule of Appellate Procedure 44 requires a party challenging the constitutionality of an Act of Congress to notify the court of appeals so that its Clerk can notify the Attorney General. Rule 29.4(b) of the Rules of this Court likewise requires that in any proceeding wherein the constitutionality of an Act of Congress is drawn in question, and the United States is not a party, "the initial pleading, motion, or paper filed in this court shall recite that 28 U.S.C. Section 2403(a) may be applicable." That Rule further provides that in proceedings from any court of the United States, "the initial pleading, motion, or paper shall also state whether or not that court, pursuant to 28 U.S.C. Section 2403(a), has certified to the Attorney General the fact that the constitutionality of an Act of Congress was drawn into question." Notwithstanding these rules, neither party provided the requisite notice, and no certification was provided by the clerk of the court of appeals below. The Solicitor General did not learn that the constitutionality of an Act of Congress was drawn in question in this case until the Court granted certiorari on June 28, 1990. Consequently, the United States had no opportunity to participate in this case before it reached this Court. 4. The United States has a longstanding and significant interest in the Court's resolution of the questions presented in this case. In 1978, after almost ten years of study and investigation, Congress enacted the Bankruptcy Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (repealed). The 1978 Act represented the first comprehensive revision of the bankruptcy system since 1898. Among other purposes, it was designed to reduce the serious delays in bankruptcy proceedings caused by the crowded dockets of non-bankruptcy courts. This Court held the 1978 Act's grant of jurisdiction to bankruptcy courts unconstitutional in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). In response, Congress enacted the legislation challenged in this case -- the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333. Congress, in the 1984 Act, intended to conform the bankruptcy system to the requirements of Article III as determined by this Court. The United States has a profound interest in whether the revised bankruptcy system is found by this Court to comport with constitutional requirements. 5. On consideration of the substantial federal interest in the constitutional question in this case, and the government's statutory authority to intervene as of right with "all the rights of a party," 28 U.S.C. 2403(a), we request the Court to grant the United States leave to intervene. See Glidden Co. v. Zdanok, 368 U.S. 814, 885 (1961); International Assoc. of Machinists v. Street, 363 U.S. 825 (1960). See generally R. Stern, E. Gressman & S. Shapiro, supra, Section 6.16, at 341; id. Section 6.33, at 380 & n.94. Respectfully submitted. KENNETH W. STARR Solicitor General SEPTEMBER 1990 /*/ This Section provides: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. 28 U.S.C. 2403(a).