                                                               FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                         July 28, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                          Clerk of Court
                                 TENTH CIRCUIT




In re: RENEWABLE ENERGY
DEVELOPMENT CORPORATION,

      Debtor.


ELIZABETH R. LOVERIDGE,
Chapter 7 Trustee,

      Plaintiff,

v.                                               No. 14-4001

TONY HALL; ELLIS-HALL
CONSULTANTS, LLC; SUMMIT
WIND POWER, LLC; SSP, a trust,
Scott Rasmussen-Trustee; CLAY R.
CHRISTIANSEN; DIANE E.
CHRISTIANSEN; RICHARD D.
FRANCOM; STEPHEN K. MEYER;
BONNIE G. MEYER; DOES I-X;

      Defendants,

and

SUMMIT WIND POWER, LLC;
KIMBERLY CERUTI, an individual,

      Third-Party Plaintiffs -
      Appellants,

v.

PARSONS KINGHORN HARRIS, a
professional corporation; GEORGE B.
 HOFMANN; MATTHEW M. BOLEY;
 KIMBERLEY L. HANSEN; VICTOR
 E. COPELAND; LISA R. PETERSON;
 MELYSSA DAVIDSON, individuals,

        Third-Party Defendants -
        Appellees.



                                     ORDER


Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.



      This matter is before the court on the appellees’ petition for panel

rehearing. The petition is denied. The panel has determined, however, that sua

sponte amendment of the original opinion is in order. An amended version of the

opinion issued July 10, 2015, is attached and shall be issued nunc pro tunc to the

original filing date.



                                             ENTERED FOR THE COURT




                                             Elisabeth A. Shumaker, Clerk




                                         2
                                                               FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                         July 10, 2015
                                                      Elisabeth A. Shumaker
                                   PUBLISH                Clerk of Court

                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT




In re: RENEWABLE ENERGY
DEVELOPMENT CORPORATION,

      Debtor.


ELIZABETH R. LOVERIDGE,
Chapter 7 Trustee,

      Plaintiff,

v.                                               No. 14-4001

TONY HALL; ELLIS-HALL
CONSULTANTS, LLC; SUMMIT
WIND POWER, LLC; SSP, a trust,
Scott Rasmussen-Trustee; CLAY R.
CHRISTIANSEN; DIANE E.
CHRISTIANSEN; RICHARD D.
FRANCOM; STEPHEN K. MEYER;
BONNIE G. MEYER; DOES I-X;

      Defendants,

and

SUMMIT WIND POWER, LLC;
KIMBERLY CERUTI, an individual,

      Third Party Plaintiffs -
      Appellants,

v.
 PARSONS KINGHORN HARRIS, a
 professional corporation; GEORGE B.
 HOFMANN; MATTHEW M. BOLEY;
 KIMBERLEY L. HANSEN; VICTOR
 E. COPELAND; LISA R. PETERSON;
 MELYSSA DAVIDSON, individuals,

       Third Party Defendants -
       Appellees.



                  Appeal from the United States District Court
                            for the District of Utah
                        (D.C. No. 2:12-CV-00771-RJS)


Stephen Q. Wood (Mary Anne Q. Wood with him on the briefs) of Wood
Balmforth LLC, Salt Lake City, Utah, for Third Party Plaintiffs-Appellants.

Stuart H. Schultz of Strong & Hanni, Salt Lake City, Utah for Third Party
Defendants-Appellees.


Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.


GORSUCH, Circuit Judge.


      This case has but little to do with bankruptcy. Neither the debtor nor the

creditors, not even the bankruptcy trustee, are parties to it. True, the plaintiffs

claim they once enjoyed an attorney-client relationship with a former bankruptcy

trustee. True, they now allege the former trustee breached professional duties due

them because of conflicting obligations he owed the bankruptcy estate. But the



                                          2
plaintiffs seek recovery only under state law and none of their claims will be

necessarily resolved in the bankruptcy claims allowance process. And to know

that much is to know this case cannot be resolved in bankruptcy court. The

bankruptcy court may offer a report and recommendation. It may even decide the

dispute if the parties consent. But the parties are entitled by the Constitution to

have an Article III judge make the final call. So the district court’s ruling

otherwise — its decision to send the dispute to an Article I bankruptcy court for

final resolution without their consent — violates the Constitution’s commands

and must be corrected.

      Conflicts of interest often spell trouble for lawyers. The rules are complex

and missteps happen. And at least as the complaint in this case tells it, a misstep

happened here. When Renewable Energy Development Corporation (REDCO)

found itself facing Chapter 7 proceedings, the bankruptcy court appointed

attorney George Hofmann to serve as trustee for the estate. REDCO was in the

wind business and its assets included lease options with private property owners

who agreed to allow wind farms on their lands. As trustee, Mr. Hofmann was

eager to ascertain the value of REDCO’s leases so he consulted another client of

his with expertise in the field — Kimberly Ceruti, the owner of Summit Wind

Power, LLC. The pair eventually discovered that REDCO had failed to pay some

property owners the consideration it owed them. As a result, Mr. Hofmann




                                          3
allegedly concluded that REDCO’s options were unenforceable and even

encouraged Summit to pursue its own leases with the same individuals. Which it

promptly did.

      What started off sounding like a good idea and maybe even a win-win for

REDCO and Summit soon yielded a rat’s nest of conflicts. On further study, Mr.

Hofmann came to the view that the property owners couldn’t cancel their leases

with REDCO in favor of Summit without first giving REDCO a chance to cure its

nonpayment. And, in Mr. Hofmann’s estimation, the chance to cure was a

valuable opportunity for REDCO and its creditors. So he asked Summit to forgo

its new leases in favor of REDCO’s old ones. Summit refused. Things got so

testy that Mr. Hofmann, yes, brought an adversarial proceeding in bankruptcy

court against one client (Summit) on behalf of another (the REDCO estate).

Unsurprisingly, Summit responded with state law claims against Mr. Hofmann

and his law firm, alleging legal malpractice, breaches of fiduciary duties, and a

good many other things besides. Mr. Hofmann, by now irredeemably conflicted,

was replaced as trustee.

      How do these unfortunate but hardly uncommon (and still unproven and

only alleged) facts yield a dispute of constitutional magnitude? Summit filed suit

in federal court against Mr. Hofmann alleging diversity jurisdiction and the right

to have the case resolved in an Article III court. Mr. Hofmann replied that the

case belonged in and should be resolved by an Article I bankruptcy court.

                                         4
Ultimately, the district court sided with Mr. Hofmann even as it acknowledged

some uncertainty about this much and certified its decision for an immediate

appeal.

        The Constitution assigns “[t]he judicial Power” to decide cases and

controversies to an independent branch of government populated by judges who

serve without fixed terms and whose salaries may not be diminished. U.S. Const.

art. III, § 1. This constitutional design is all about ensuring “clear heads . . . and

honest hearts,” the essential ingredients of “good judges.” 1 Works of James

Wilson 363 (J. Andrews ed., 1896) (alteration omitted), quoted in Stern v.

Marshall, 131 S. Ct. 2594, 2609 (2011). After all, the framers lived in an age

when judges had to curry favor with the crown in order to secure their tenure and

salary and their decisions not infrequently followed their interests. Indeed, the

framers cited this problem as among the leading reasons for their declaration of

independence. The Declaration of Independence ¶ 11; Stern, 131 S. Ct. at 2609.

And later they crafted Article III as the cure for their complaint, promising there

that the federal government will never be allowed to take the people’s lives,

liberties, or property without a decisionmaker insulated from the pressures other

branches may try to bring to bear. Stern, 131 S. Ct. at 2609. To this day, one of

the surest proofs any nation enjoys an independent judiciary must be that the

government can and does lose in litigation before its “own” courts like anyone

else.

                                           5
      Despite the Constitution’s general rule, over time the Supreme Court has

recognized three “narrow” situations in which persons otherwise entitled to a

federal forum may wind up having their dispute resolved by someone other than

an Article III judge. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 64 (1982) (plurality opinion). Cases arising in the territories or the

armed forces or those involving “public rights” may be sent to Article I tribunals

of Congress’s creation even if decisionmakers there do not enjoy the same

insulation and independence as Article III judges. Id. at 63-72. Bankruptcy

courts are, of course, legislative creations of just this sort. And because they

don’t have a thing to do with the territories or armed forces, the Supreme Court

has suggested that their lawful charter depends on and is limited by public rights

doctrine.

      As developed to date, public rights doctrine has something of “a potluck

quality” to it. Waldman v. Stone, 698 F.3d 910, 918 (6th Cir. 2012) (Kethledge,

J.). The original idea appears to have been that certain rights belong to

individuals inalienably — things like the rights to life, liberty, and property —

and they may not be deprived except by an Article III judge. Meanwhile,

additional legal interests may be generated by positive law and belong to the

people as a civic community and disputes about their scope and application may

be resolved through other means, including legislation or executive decision. See

Stern, 131 S. Ct. at 2612; Caleb Nelson, Adjudication in the Political Branches,

                                          6
107 Colum. L. Rev. 559, 566-72 (2007). But the boundary between private and

public rights has proven anything but easy to draw and some say it’s become only

more misshapen in recent years thanks to seesawing battles between competing

structuralist and functionalist schools of thought. Compare, e.g., Northern

Pipeline, 458 U.S. 50, and Stern, 131 S. Ct. 2594, with Commodity Futures

Trading Comm’n v. Schor, 478 U.S. 833 (1986), and Wellness Int’l Network, Ltd.

v. Sharif, 135 S. Ct. 1932 (2015). Indeed, the Court itself has acknowledged, its

treatment of the doctrine “has not been entirely consistent.” Stern, 131 S. Ct. at

2611; see also S. Elizabeth Gibson, Jury Trials and Core Proceedings: The

Bankruptcy Judge’s Uncertain Authority, 65 Am. Bankr. L.J. 143, 168-175 (1991)

(“How a majority of the Court could have embraced these opposing views of

article III within the span of less than a decade is difficult to understand,” id. at

174).

        Bankruptcy courts bear the misfortune of possessing ideal terrain for testing

the limits of public rights doctrine and they have provided the site for many such

battles. See Northern Pipeline, 458 U.S. 50; Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989); Stern, 131 S. Ct. 2594. Even today, it’s pretty hard to say

what the upshot is. Through it all, the Supreme Court has suggested that certain

aspects of the bankruptcy process may implicate public rights and thus lawfully

find resolution in Article I courts. See, e.g., Northern Pipeline, 458 U.S. at 71

(plurality opinion); Granfinanciera, 492 U.S. at 56 n.11; Stern, 131 S. Ct. at 2614

                                           7
n.7. But the Court has also emphasized time and again that not every “proceeding

[that] may have some bearing on a bankruptcy case” implicates a public right

amenable to resolution in an Article I tribunal. Stern, 131 S. Ct. at 2618.

      That much, of course, hardly decides cases. What most everyone wants to

know is which aspects of typical bankruptcy proceedings do and don’t implicate

public rights. Yet even Stern, perhaps the Court’s most comprehensive tangle

with the question, offered no comprehensive rule for application across all cases.

Instead, it invoked a number of different factors to support the result it reached in

the particular and rather unusual case at hand. Id. at 2614 (justifying its decision

because the case at hand didn’t “fall within any of the varied formulations of the

public rights exception in this Court’s cases”); see also id. at 2621 (Scalia, J.,

concurring) (noting the “surfeit” of factors and formulations offered by the

majority); Ralph Brubaker, A “Summary” Statutory and Constitutional Theory of

Bankruptcy Judges’ Core Jurisdiction After Stern v. Marshall, 86 Am. Bankr. L.J.

121, 172 (2012).

      But along the way Stern did clearly take at least one thing off the table. It

held that when a “claim is a state law action . . . and not necessarily resolvable by

a ruling on the creditor’s proof of claim in bankruptcy,” it implicates private

rights and thus is not amenable to final resolution in bankruptcy court. Stern, 131

S. Ct. at 2611. Indeed, the Court repeated this point — repeatedly. See id. at

2617, 2618, 2620. So whatever else you might say in the midst of this still-very-

                                           8
much-ongoing battle over bankruptcy and public rights doctrine, you can say this

much: cases properly in federal court but arising under state law and not

necessarily resolvable in the claims allowance process trigger Article III’s

protections.

      Happily, too, this is all the guidance we need to answer this appeal. While

the parties before us agree on little else, they agree that Summit’s claims against

Mr. Hofmann and his firm are properly heard in federal court under the federal

diversity statute, that they arise under state law, and that none will necessarily be

resolved in the process of allowing or disallowing claims against the estate.

Accordingly, we can be sure this is not the sort of case that may be forcibly

shipped to an Article I bankruptcy court for final decision. The parties may

waive their right to an Article III forum and choose to have their claims resolved

in bankruptcy court. Wellness Int’l Network, 135 S. Ct. at 1939. But a district

court may not — as the district court did here — send parties entitled to an

Article III court to an Article I forum for final decision without their consent.

      Mr. Hofmann resists this result by suggesting that Summit’s claims are

factually “intertwined” with the bankruptcy proceedings and for this reason

belong in bankruptcy court. After all, he says, any harm that happened here

happened only because of a conflict of interest arising from his service as a

bankruptcy trustee. This much may be true but it equally strikes us as irrelevant.

As we read Stern, it doesn’t leave room for the notion that a claim independently

                                           9
arising under state law and not necessarily resolvable in the claims allowance

process — but “factually intertwined” with bankruptcy proceedings — may be

sent to bankruptcy court for final resolution without consent. As we see it, the

only “intertwining” Stern cares about concerns the law, not the facts. In the

process of rejecting the idea that the claim before the Court implicated public

rights doctrine, Stern observed (among other things) that the claim was not

“intertwined with a federal regulatory program Congress has power to enact” but

arose instead under state law. 131 S. Ct. at 2614 (quoting Granfinanciera, 492

U.S. at 54). The Court pointed out that prototypical public rights disputes arise

from “federal statutory scheme[s]” while “quintessential[]” private rights disputes

involve common law rights affecting personal life, liberty, or property. Id. at

2614, 2618. In this way, the Court did suggest the source of law generating a

claim may inform its categorization as involving a public or private right. But the

Court nowhere suggested that any claim “factually intertwined” with bankruptcy

may be sent to bankruptcy court for final resolution without consent.

      We confess we’re glad of this. Asking what source of law generated the

claim at issue may well raise some questions around the edges — like what about

claims pursuing fraudulent conveyances, which find a home in a federal statute

but surely implicate longstanding common law rights? See Granfinanciera, 492

U.S. at 56. Still, questions like these aren’t a patch on what would be involved if

in each case we had to ask whether the plaintiff’s claims are “factually


                                         10
intertwined” with a bankruptcy proceeding. If, as Mr. Hofmann submits, our case

is “factually intertwined” enough with bankruptcy to warrant its resolution in

bankruptcy court — just because a trustee in the bankruptcy happened to generate

a conflict of interest with a client outside the bankruptcy — what wouldn’t be?

What if a trustee and creditor came to blows in the courthouse parking lot over

the terms of a proposed reorganization plan? What if a trustee stole from a third

person and gave the money to the bankruptcy estate? Couldn’t someone plausibly

describe disputes like these as at least as “factually intertwined” with bankruptcy

as our own?

      The implausibility of Mr. Hofmann’s “factually intertwined” test as a

viable interpretation of Stern and its inadvisability as a practical matter are

further underscored by this. If we were to adopt his test, you could make a pretty

good argument Stern itself would have had to come out the other way. In Stern

the debtor brought a tort counterclaim against a creditor in hopes of enlarging the

bankruptcy estate and the Supreme Court found the allegation sufficient to trigger

the bankruptcy court’s “core” authorities. 131 S. Ct. at 2604. That sounds pretty

“factually intertwined.” Yet the Court held the case triggered Article III’s

protections. A similar sort of problem may recur with Granfinanciera too. There

the debtor allegedly engaged in a fraudulent conveyance to hide assets from the

bankruptcy estate. Though the Court decided the case on other grounds (the

Seventh Amendment), Stern seemed to suggest that fraudulent conveyance cases


                                          11
involve private rights and thus are of the sort that (absent consent) must be

decided in Article III courts. See id. at 2614 n.7 (describing Granfinanciera as

teaching that “Congress could not constitutionally assign resolution of the

fraudulent conveyance action to a non-Article III court”); see also In re

Bellingham Ins. Agency, Inc., 702 F.3d 553, 563 (9th Cir. 2012) aff’d sub nom.

Executive Benefits Ins. Agency v. Arkison, 134 S. Ct. 2165 (2014). Even though,

surely, one could argue fraudulent conveyance claims are usually (always?)

“factually intertwined” with the bankruptcy process because they challenge

efforts to evade it. That Mr. Hofmann’s proposed test would place us at odds

with what the Supreme Court has decided in Stern — and at least suggested about

Granfinanciera — does much to make us skittish of following where he would

have us go.

      Notably, many circuits to come this way before us have read Stern much as

we do. In fact, some have even read the decision as claiming a good deal more

ground for Article III than we must to resolve this appeal. The Ninth Circuit, for

one, has suggested that only the second portion of the Stern test we’ve discussed

— whether the matter would necessarily be resolved in the claims allowance

process — must be satisfied to trigger Article III’s protections. After all, the

Ninth Circuit has noted, Granfinanciera involved a claim at least nominally

arising from federal statute (not state law), yet it’s one Stern seemed to suggest

belongs on the private side of the rights ledger. In re Bellingham, 702 F.3d at


                                         12
564. Neither is the Ninth alone in this view. See, e.g., In re Fisher Island Invs.,

Inc., 778 F.3d 1172, 1192 (11th Cir. 2015) (holding that a bankruptcy court had

authority to decide a state law dispute that was necessarily resolved in the claims

allowance process); In re Frazin, 732 F.3d 313, 320-24 (5th Cir. 2013) (invoking

the claims allowance process to explain why a bankruptcy court could decide

certain state law claims but not others); Waldman, 698 F.3d at 921 (finding an

Article III problem because “there was never any reason to think that” the

debtor’s “disallowance claims would necessarily resolve his affirmative [state

law] claims”). To decide the case before us, however, we do not have to travel so

far for both of the factors Stern discussed are present here and surely all the

circuits to have spoken on the subject would agree their combination is enough

(maybe more than enough) to invite Article III’s application.

      Mr. Hofmann brushes aside these authorities and asks us to find inspiration

instead in Albert v. Site Mgmt., Inc., 506 B.R. 453 (D. Md. 2014), and In re Refco

Inc., 461 B.R. 181 (Bankr. S.D.N.Y. 2011). But neither of these cases

acknowledges Stern’s direction that a case meeting both of the conditions we’ve

discussed is entitled to an Article III forum. Neither of these cases appears

reconcilable with the most thoughtful circuit learning on the subject we’ve just

outlined. Refco even admits that its result is in tension with Stern, going so far as

to acknowledge that the Supreme Court would likely reject its result. Refco, 461

B.R. at 191; see also In re Lyondell Chem. Co., 467 B.R. 712, 721 (S.D.N.Y.


                                         13
2012) (agreeing with Refco’s self-assessment). And it can come as no surprise

that a court’s well-reasoned confession its ruling runs afoul of Supreme Court

precedent is enough to send us packing in the other direction.

      Perhaps what Mr. Hofmann, the district court, and these authorities are

aiming at is something different and a good deal more plausible than an extension

of public rights doctrine to cases “factually intertwined” with bankruptcy. In

places, you could read them all as suggesting less that cases like ours qualify as

bona fide public rights disputes and more that we should consider recognizing a

fourth qualification to Article III, one particular to bankruptcy, to cover them.

And somewhere in here there may be a good argument premised on historical

understanding. At the time of the founding, English bankruptcy commissioners

could “summarily” decide matters related to the disposition of property in the

bankruptcy estate — a sort of equitable in rem authority to administer and dispose

of the bankrupt’s assets for the benefit of his creditors. But bankruptcy

commissioners could not resolve “plenary” suits involving outside parties or

questions about what property belonged in or out of the bankruptcy estate. Such

matters had to be resolved before a judge. Congress’s early attempts to

implement a nationwide bankruptcy system reflected this same jurisdictional

divide. See Brubaker, supra, at 123-30; Arkison, 134 S. Ct. at 2170. And there’s

a colorable argument that Article III should be read in light of this historical

practice. You might even rationalize Stern and other existing cases along these


                                          14
lines. After all, Stern’s second condition, focusing on the amenability of a claim

to resolution in the bankruptcy claims process, could be read as suggesting that

the constitutional line falls along something like the old summary-plenary divide.

So might Stern’s suggestion that fraudulent conveyance claims belong in an

Article III court despite the fact they sometimes nominally arise from federal

statute. And so might the logic behind the Ninth Circuit’s decision in Bellingham

and similar circuit decisions elsewhere.

      Recognizing the summary-plenary line as the operative constitutional

boundary in bankruptcy may have the virtue of consistency with historical

practice and afford lower courts (some of) the guidance they’ve long wanted. See

Brubaker, supra, at 123-30. It might also have the virtue of avoiding further

entanglements with public rights doctrine in this area — a doctrine that’s not only

pretty hard to get your hands around, but one that on even a good day may be

poorly suited to the task of allocating decisonmaking authority in bankruptcy

given (after all) that bankruptcy involves the disposition of private assets between

private parties. It’s perhaps telling in this regard that, despite suggesting some

aspects of bankruptcy implicate only public rights, precisely none of the Court’s

Article III bankruptcy cases has yet upheld a bankruptcy court’s decision on this

basis. And perhaps telling, too, that several Justices have expressed openness to

exploring the use of historical practice as a basis for the constitutional boundary

between Article I and Article III in the bankruptcy context. See Wellness Int’l


                                           15
Network, 135 S. Ct. at 1951 (Roberts, C.J., dissenting); id. at 1967-68 (Thomas,

J., dissenting); Stern, 131 S. Ct. at 2621 (Scalia, J., concurring); see also

Brubaker, supra, at 164-67; Gibson, supra, at 170.

      Still, it’s hardly clear that pursuing this idea further would help Mr.

Hofmann. For this case doesn’t involve the administration or distribution of

estate assets and it would seem to fit pretty neatly on the plenary side of the line.

Even more problematically still, while the district court discusses a possible

argument in this direction, Mr. Hofmann’s brief does no more than allude to it.

And because entertaining an argument for drawing a new doctrinal boundary

between Article I and Article III in the bankruptcy context would require us to

confront highly “difficult constitutional question[s]” that are “not adequately . . .

briefed,” we are naturally reluctant to venture farther into this dark wood without

more help from counsel. Wellness Int’l Network, 135 S. Ct. at 1970 (Thomas, J.,

dissenting). After all, what looks a promising possibility from afar often reveals

scraggly particulars on closer encounter. So in the end we think the prudent

course is to leave Mr. Hofmann’s allusion where we find it and defer its

resolution for another case where it may be more fully explored by the parties.

      Still, that’s not the end of our encounter with this appeal. It isn’t because

saying (as we do) that a bankruptcy court may not decide this case without the

parties’ consent under Stern doesn’t necessarily mean it cannot hear the case and

offer a report and recommendation about its disposition to a district court.


                                          16
Indeed, as the Supreme Court has recently explained, where (as here) we are

faced with a “Stern claim”— a claim the bankruptcy court is statutorily but not

constitutionally authorized to decide and for which it has not received the parties’

consent to proceed — it’s still possible under 28 U.S.C. § 157(c)(1) and

consistent with Article III for a bankruptcy court to “hear the proceeding and

submit proposed findings of fact and conclusions of law to the district court for

de novo review and entry of judgment.” Arkison, 134 S. Ct. at 2173. In cases

like this, the bankruptcy court may act as a sort of magistrate or special master,

an adjunct to the decisionmaker, not the decisionmaker itself — and in this way

honor both statutory and constitutional commands. Id. So while Summit is right

and the district court erred in sending Mr. Hofmann’s case to bankruptcy court for

final decision, the district court remains free on remand to refer the case to a

bankruptcy court for a report and recommendation.

      Summit resists this result, fighting even a temporary trip to bankruptcy

court for a report and recommendation. For a bankruptcy court to hear a claim as

a matter of statutory law, Summit notes, 28 U.S.C. § 157(a) instructs that the

claim must “aris[e] under title 11 or aris[e] in or relate[] to a case under title 11,”

the federal bankruptcy code. And Summit says this requirement isn’t met in this

case because the parties’ fight is so far removed from bankruptcy that it can’t be

said to “aris[e] under title 11 or aris[e] in or relate[] to a case under title 11.” But

whatever other problems might attend this line of argument one is by now


                                          17
familiar: it wasn’t made before the district court and is therefore another one we

may and do decline to resolve in this appeal. See Waldman, 698 F.3d at 917.

      Not ready to give up quite so easily on its effort to avoid even a short

detour from district court, Summit suggests we cannot ignore and must resolve its

argument because it implicates the subject matter jurisdiction of the federal

courts. But that much it does not — quite — do. The statute Summit invokes, 28

U.S.C. § 157, involves only the allocation of responsibility between the

bankruptcy and district court; it does not “implicate questions of subject matter

jurisdiction.” Stern, 131 S. Ct. at 2607. We acknowledge that § 157(a) shares

similar language with 28 U.S.C. § 1334(b) — and we readily accept that statute is

jurisdictional: quite expressly it provides district courts with “jurisdiction” over

“all civil proceedings arising under title 11, or arising in or related to cases under

title 11.” So maybe Summit’s § 157(a) argument could be transferred to

§ 1334(b), and maybe the argument could present a successful jurisdictional

challenge there. But if it did, it wouldn’t be just the bankruptcy court that would

lack jurisdiction to hear and report on this case. The district court itself would

have no authority to hear the case either for § 1334(b) expressly governs its

jurisdiction too.

      Anxious to remain in federal court — just not ever visit bankruptcy court

— Summit shirks from acknowledging this, the full consequences of its argument,

and nowhere mentions § 1334(b) in its opening brief or how its argument might

                                          18
apply to that statute. And, happily for everyone, we don’t have to address the

question on our own motion either, even though it does implicate subject matter

jurisdiction. We don’t because, whether or not the district court has jurisdiction

to decide this case under § 1334(b), everyone acknowledges it clearly has

jurisdiction to do just that under § 1332(a) given that the complaint alleges

complete diversity of citizenship and a sufficient amount in controversy. See,

e.g., Penteco Corp. Ltd. P’ship–1985A v. Union Gas Sys., Inc., 929 F.2d 1519,

1521 (10th Cir. 1991).

      At the end of the day, then, we are confident that the district court

possesses subject matter jurisdiction to hear this case at least under the diversity

statute, that Summit is entitled under Stern to have an Article III district court

resolve its claims, and that the district court may refer the case to an Article I

bankruptcy court for a report and recommendation. Many other questions remain

for tomorrow. But resolving this much is enough work for today. The case is

remanded to the district court for further proceedings consistent with this opinion.




                                          19
