On remand from the Supreme Court in Redington v. Touche Ross & Co., 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), reversing 592 F.2d 617. The decision of the District Court for the southern District of New York, Wyatt, J., dismissing the complaint for lack of of federal jurisdiction by virtue of § 23 of the Bankruptcy Act, 11 U.S.C. § 46, is affirmed.
Before Lumbard, Mulligan and Timbers, Circuit Judges.
This case presents us with the task of reconciling the jurisdictional provisions of the Securities Investor Protection Act ("SIPA") of 1970, 15 U.S.C. § 78aaa Et seq.,*fn1 and the Bankruptcy Act, as amended, in the context of an attempt by the Trustee of a brokerage house in SIPA liquidation to maintain in federal court a suit for negligence, malpractice, breach of warranty and breach of contract against a nondiverse accounting firm, Touche Ross & Co. We conclude that § 23 of the Bankruptcy Act,*fn2 11 U.S.C. § 46, precludes the exercise of federal jurisdiction over such a "plenary" suit in a SIPA proceeding, in the absence of any source of federal jurisdiction outside SIPA itself and those provisions of the Bankruptcy Act incorporated by SIPA.*fn3
The Supreme Court, in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), reversed our decision*fn4 to allow the Trustee to maintain a private right of action for violations of § 17 of the Securities and Exchange Act of 1934 and remanded the case to us for a decision on the Trustee's alternative bases for jurisdiction, which are grounded in various provisions of SIPA and the Bankruptcy Act. No non-Bankruptcy Act, non-SIPA source of jurisdiction is alleged. The parties have filed additional briefs; we proceed to determine the remaining jurisdictional questions.*fn5
As stated more fully in our prior opinion, reported at 592 F.2d 617 (1978), the SIPA Trustee of Weis Securities Inc., a New York brokerage firm, seeks to recover $65 million in damages from the firm's accountants, alleging that their failure to discover fraudulent entries in the firm's books in the 1972 audit led to the firm's failure in 1973.
On remand, the Trustee urges that the federal courts are invested with "plenary" jurisdiction to hear such a suit as part of the powers conferred on a federal court supervising a broker liquidation under SIPA. Section 5(b)(2), 15 U.S.C. § 78eee(b)(2) of SIPA is undoubtedly a jurisdictional provision, and it provides that:
Upon the filing of an application (for a SIPA liquidation), the court to which application is made shall have exclusive jurisdiction of the debtor involved and its property wherever located With the powers, to the extent consistent with the purposes of this chapter, of a court of bankruptcy and of a court in a proceeding under chapter X of the Bankruptcy Act. (Emphasis added).
This sentence contains no fewer than three jurisdictional grants. First, the court is given the "summary" jurisdiction exercised by bankruptcy courts by the phrase "exclusive jurisdiction of the debtor involved and its property wherever located." Second, the SIPA court is given the powers of a federal court supervising a "straight" bankruptcy proceeding under chapters I-VII, and, third, the powers of a court supervising a reorganization under chapter X. Both these latter grants are circumscribed, significantly, by the proviso that limits the SIPA court's quasi-chapter I-VII powers and quasi-chapter X powers to those "consistent with the purposes" of SIPA itself.
Although the line between "summary" and "plenary" jurisdiction is not always drawn with clarity in case law, it is clear that a suit of this kind requires "plenary" jurisdiction, absent consent of the parties. Williams v. Austrian, 331 U.S. 642, 67 S. Ct. 1443, 91 L. Ed. 1718 (1947). Therefore the first grant of jurisdiction in § 5(b)(2) of the 1970 Act will not suffice. The second jurisdictional grant picks up all the provisions of chapters I-VII, including § 23 of the Bankruptcy Act, 11 U.S.C. § 46, which withdraws jurisdiction from a "straight" bankruptcy court in cases which could not have been brought in federal court without resort to bankruptcy jurisdiction and which are not subject to summary jurisdiction. The third jurisdictional grant incorporates the provisions of chapter X, including § 102 of the Bankruptcy Act, 11 U.S.C. § 502, which eliminates from reorganization proceedings the restriction contained in § 23. Thus the jurisdictional language of § 5(b)(2) of SIPA refers us to two inconsistent jurisdictional provisions. It is clear that our resolution must depend on our answer to the question of which jurisdictional outcome is more "consistent with the purposes" of SIPA.
Fortunately, Congress supplied an unequivocal, if somewhat involved, answer to this question in § 6(c)(1) of SIPA, 15 U.S.C. § 78fff(c)(1), which reads in pertinent part:
Except as inconsistent with the provisions of this chapter and except that in no event shall a plan of reorganization be formulated, a liquidation proceeding shall be conducted in accordance with, and As though it were being conducted under, the provisions of chapter X and such of the provisions . . . of chapters I to VII inclusive, of the Bankruptcy Act as section (502 of Title 11) would make applicable if an order of the court had been entered directing that bankruptcy be proceeded with Pursuant to the provisions of such chapters I to VII . . . . (Emphasis added)
It is 11 U.S.C. § 502 that gives the chapter X court power to hear "plenary" suits that would be barred by 11 U.S.C. § 46 in "straight" bankruptcies. But § 502 also provides that the restrictions of 11 U.S.C. § 46 will come back into play once an order is entered directly that bankruptcy be proceeded with (in other words, that the attempt to reorganize the corporation be abandoned and a liquidation be accomplished).
Congress' clear purpose in writing § 6(c)(1) of SIPA in the manner chosen was to structure SIPA liquidations, insofar as the SIPA court's powers with regard to jurisdiction and procedure are concerned, on the model of a chapter X court which has entered an order directing that bankruptcy be proceeded with. Thus, § 6(c)(1) gives SIPA liquidation courts the ...