NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 17-3042 & 17-3089 ________________

MILTON THOMAS, SR.,

Appellant in 17-3042

v.

CITY OF PHILADELPHIA; THE SCHOOL DISTRICT OF PHILADELPHIA; WILLIAM MILLER, U.S. BANKRUPTCY TRUSTEE

City of Philadelphia; The School District of Philadelphia,

Appellants in 17-3089 ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (Civil Action No. 2-15-cv-003422) ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on July 9, 2018

Before: McKEE, VANASKIE*, and SILER**, Circuit Judges

(Opinion filed January 3, 2019)

* The Honorable Thomas I. Vanaskie participated in the decision in this case. Judge Vanaskie retired from the Court on January 1, 2019 after the submission date, but before the filing of the opinion. This opinion is filed by a quorum of the panel pursuant to

(d) and Third Circuit I.O.P. Chapter 12. ** Honorable Eugene E. Siler, Jr. Senior Circuit Judge for the Sixth Circuit Court of Appeals in Kentucky, sitting by designation. ________________

OPINION*** ________________

McKEE, Circuit Judge

This appeal and cross appeal arise from the District Court’s order denying a

motion for judgment on the pleadings filed by the City of Philadelphia and the School

District of Philadelphia and awarding a monetary sanction to the plaintiff, Milton

Thomas, Sr. The dispute arose from the City’s efforts to collect delinquent taxes on

rental properties owned by Thomas. The court imposed the sanction based upon its

conclusion that the City’s efforts to collect those taxes by a Sheriff Sale violated a

discharge injunction that had been entered in Thomas’ bankruptcy proceedings pursuant

to

. For the reasons that follow, we will reverse.

The defendants first argue that the District Court lacked subject matter jurisdiction

to resolve the underlying dispute. In In re Joubert, we considered whether

(a) grants a private cause of action to plaintiffs suing to recover for a violation of §

506(b).1 Analogizing § 506(b) to §524 we held that the “lone remedy is a contempt

proceeding pursuant to §105(a) in bankruptcy court.”2 Moreover, we have cautioned that

*** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 In re Joubert,

(3d Cir. 2005) 2

at 455 2 §105(a) has limited scope, supplementing “specifically enumerated bankruptcy powers

by authorizing orders necessary or appropriate to carry out provisions of the Bankruptcy

Code.”3

Although we appreciate that the District Court may have been appropriately

concerned about the convenience of this pro se plaintiff, that does not empower the court

to act beyond the statutory parameters of the bankruptcy process. While §105(a) is both a

powerful and versatile tool, it operates solely within the context of bankruptcy

proceedings.4 In In re Morristown, we held that §105(a) “authorizes the bankruptcy court,

or the district court sitting in bankruptcy, to fashion such orders as are required to further

the substantive provisions of the Code.”5 But §105(a) does not give “the court the power

to create substantive rights that would otherwise be unavailable under the Code.”6

The District Court correctly noted, “Defendants had multiple opportunities to

argue the Court does not have jurisdiction, yet raised it only after the Third Circuit

remanded this action for [the District Court] to ‘decide anew, . . . whether the City had

sufficient notice of Thomas’s bankruptcy.’”7 However, it is axiomatic that federal courts

must always assure themselves that they have subject matter jurisdiction, and that

jurisdiction can be challenged at any time during the life of a case. Accordingly, the

3 In re Continental Airlines,

(3d. Cir. 2000) 4 In re Morristown & Erie Railroad Co.,

(3d Cir. 1990) 5

at 100 6

7 Thomas v City of Philadelphia,

(3d Cir. 2017) 3 timing of the challenge to the court’s jurisdiction was irrelevant and remains irrelevant to

any inquiry into the court’s authority to act.

The District Court incorrectly relied on In re Motichko, in concluding that it did

have subject matter jurisdiction and could sanction the defendants for violating the

bankruptcy injunction.8 The Court explained that the approach taken there allows “a

court discretion to resolve a matter using the most appropriate procedure.”9 However, the

question in In re Motichko was not one of subject matter jurisdiction. Rather, the court

was faced with a 12(b)(6) motion to dismiss a complaint that the plaintiff/debtor had filed

seeking damages for a violation of the bankruptcy injunction that arose pursuant to

. The bankruptcy court noted that § 524 did not provide a private right of

action but that a court could regard such a violation as contempt pursuant to the

“inherent . . . statutory powers under

(a).”10 The court held that it could

impose a sanction for contempt even though a party sought to recover damages as long as

the injured party could establish that the defendant had violated the bankruptcy

injunction. Significantly, the court also noted that suits for alleged violations of § 524

“generally involve jurisdictional issues,” and it cited Pertuso v. Ford Motor Credit Co. in

observing that courts had dismissed such suits where they were brought “outside [of] the

bankruptcy court where the discharges were granted.”11 That is, of course, the situation

here.

8

(Bankr. N.D. Ohio 2008) 9

10 In re Motichko at 29. 11

at 30 (citing Pertuso v. Ford Motor Credit Co.,

(6th Cir. 2000). 4 Moreover, in In re Joubert we stated our agreement with those courts that have

held that Ҥ 105(a) does not authorize separate lawsuits as a remedy for bankruptcy

violations, though established in the § 524 context. . . .”. 12 Thus, the matter is settled.

Any sanction for violating the § 524 injunction must be imposed by the bankruptcy court;

the District Court therefore lacked subject matter jurisdiction to sanction the defendants

for violating § 524.

If Thomas is to receive any remedy for the City’s dereliction, it must be in

Bankruptcy Court. However, we take no position on whether that court should grant any

relief or sanction in the event that Thomas does file an action there.

For the foregoing reasons the District Court’s judgment is vacated.

12 In re Joubert,

. 5