National Trust for Historic Preservation in U.S. v. F.D.I.C., 93-5137

• Decision Date: 28 May 1993
• Docket Number: No. 93-5137,93-5137
• Citation: 995 F.2d 238
• Parties: , 61 USLW 2751 NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES; Historic Preservation League, Inc., a Non-Profit Corporation; Historic Preservation League of Dallas, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION; Andrew C. Hove, Jr., In His Official Capacity as Acting Chairman, Federal Deposit Insurance Corporation, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 238

995 F.2d 238

301 U.S.App.D.C. 338, 61 USLW 2751

NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES; Historic Preservation League, Inc., a Non-Profit Corporation; Historic Preservation League of Dallas Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION; Andrew C. Hove, Jr. In His Official Capacity as Acting Chairman Federal Deposit Insurance Corporation, Appellees.

No. 93-5137.

United States Court of Appeals, District of Columbia Circuit.

May 28, 1993.

Suggestion for Rehearing En Banc

Denied Oct. 21, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 93-00904).

David Armour Doheny, Elizabeth Sherrill Merritt, Andrea C. Ferster, and Richard Bart Nettler, Washington, DC, were on the motion for stay, for appellants.

Ann Scharnikow DuRoss and Jerome A. Madden, Attorneys, F.D.I.C., Washington, DC, were on the opposition to the motion for stay.

Before: WALD, RUTH BADER GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the court filed Per Curiam.

Dissenting opinion filed by Circuit Judge WALD.

PER CURIAM:

The Federal Deposit Insurance Corporation (FDIC), acting as a liquidator with the powers of a receiver, see 12 U.S.C. § 1823(d)(3)(A), is in the process of selling the Dr. Pepper Headquarters Building in Dallas, Texas. The National Trust for Historic Preservation in the United States, the Historic Preservation League, Inc., and the Historic Preservation League of Dallas (collectively, the National Trust), sued to enjoin the transaction on the ground that the FDIC's contemplated sale would violate the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. The NHPA requires, among other things, that federal agencies "take into account" possible adverse effects of agency "undertakings" on properties included in or eligible to be included in the National Register of Historic Places, and afford the Advisory Council on Historic Preservation "a reasonable opportunity to comment with regard to such undertaking[s]." See16 U.S.C. § 470f. The National Trust alleges that the FDIC is subject to the NHPA's requirements and has unlawfully ignored them in connection with the impending sale of the Dr. Pepper Building. The private buyer of the Dr. Pepper Building, all parties agree, would have no duty to comply with the federal preservation statute after acquiring the property. Once the impending sale is consummated, the National Trust thus will have no judicial or administrative recourse against this alleged violation of federal law by the FDIC.

The district court issued a temporary restraining order barring the sale, see National Trust for Historic Preservation v. FDIC, No. 93-0904, 1993 WL 328134 (D.D.C. May 7, 1993); a week later, the court (acting through a different district judge) denied the National Trust's motion for a preliminary injunction and dismissed the action for lack of jurisdiction, see id., 1993 WL 211773 (D.D.C. May 14, 1993). In dismissing the action, the district court relied exclusively on 12 U.S.C. § 1821(j). We agree that § 1821(j) bars the National Trust's suit for injunctive relief; accordingly, we deny the National Trust's motion for a stay pending appeal, and affirm the dismissal.

Section 1821(j) states:

Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.

Here, the powers and functions the FDIC is exercising are, by statute, deemed to be those of a receiver. See 12 U.S.C. § 1823(d)(3)(A). An injunction against the planned sale would surely "restrain or affect" the FDIC's exercise of those powers or functions. We reject the National Trust's argument that § 1821(j) applies only to claims that are themselves subject to the administrative claims procedures set out in 12 U.S.C. § 1821(d). Section 1821(j) is not so limited. ¹

Nothing in the text of § 1821(j) limits its application to claims brought by creditors or others who have recourse to the administrative claims regime of 12 U.S.C. § 1821(d). Cf. 28 U.S.C. § 1341 (explicitly limiting ban on federal injunctions against assessment of state taxes to cases in which there is a "plain, speedy and efficient remedy" in state court). The exclusivity of the FDIC's administrative claims provisions stems from another provision located, as one might expect for an exclusivity-of-remedies provision, directly after the claims procedures prescribed in § 1821(d). That provision, set out in § 1821(d)(13)(D) and entitled "Limitation on Judicial Review," states: Except as otherwise provided in this subsection [§ 1821(d) ], no court shall have jurisdiction over--

(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or

(ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.

It would be plausible, though we need not decide the question here, to read § 1821(d)(13)(D)(ii)'s ouster of jurisdiction as limited to suits otherwise governed by the administrative claims regime set out in § 1821(d). See, e.g., Rosa v. Resolution Trust Corp., 938 F.2d 383, 395 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991). It would not be plausible, in light of § 1821(d)(13)(D), however, to read § 1821(j) as a bar only against circumvention of the statutory administrative claims procedures. Such a reading would make the latter provision largely redundant and would overlook Congress's casting of § 1821(j)'s directive in terms, not of precluding claims, but of shielding the FDIC's exercise of its "powers" and "functions."

The National Trust also argues that § 1821(j), which applies to the FDIC when acting "as a conservator or a receiver," is simply inapplicable because the FDIC is acting in its corporate capacity. The argument is precluded by 12 U.S.C. § 1823(d)(3)(A), which provides: "With respect to any asset acquired or liability assumed pursuant to this section, the Corporation shall have all of the rights, powers, privileges, and authorities of the Corporation as receiver under section[ ] 1821 ... of this title." The FDIC acquired the Dr. Pepper Building pursuant to its powers under § 1823; and the FDIC's immunity from judicial "restraint" is among its "rights, powers, privileges, and authorities" under § 1821. ²

We do not suggest that § 1821(j) precludes courts from granting injunctive relief against the FDIC whenever and however it purports to act as a receiver. By its terms, § 1821(j) shields only "the exercise of powers or functions " Congress gave to the FDIC; the provision does not bar injunctive relief when the FDIC has acted or proposes to act beyond, or contrary to, its statutorily prescribed, constitutionally permitted, powers or functions. See Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 707 (1st Cir.1992); Rosa, 938 F.2d at 399; see also Coit Independence Joint Venture v. Federal Savings & Loan Ins. Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989). In liquidating assets it has obtained pursuant to 12 U.S.C. § 1823, however, the FDIC is acting squarely within its statutory "powers and functions," and surely not in conflict with any constitutional norm. We do not think it possible, in light of the strong language of § 1821(j), to interpret the FDIC's "powers" and "authorities" to include the limitation that those powers be subject to--and hence enjoinable for non-compliance with--any and all other federal laws. While Congress has included such provisos in some statutes immunizing agency action from outside second-guessing, see, e.g., 5 U.S.C. § 7106(a)(2) (management rights immunized from arbitral review under Federal Labor Relations Act only when exercised "in accordance with applicable laws"), we see no such limitation in § 1821(j).

In disposing of the assets of a bank, the FDIC is performing a routine "receivership" function that § 1821(j) unequivocally removes from judicial restraint. Deciding only the clear case before us, we do not reach further to consider whether § 1821(j) covers every other case a legal mind could conjure. Cf. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (recognizing exception to Tax Anti-Injunction Act, 26 U.S.C. § 7421, where tax collector lacks "good faith" claim to tax sought to be collected). The Dr. Pepper Building came into the FDIC's hands only because the building was pledged as collateral on a loan extended by a federally insured financial institution; were it not for the fortuity of that institution's failure, the building would not be even arguably within the jurisdiction of a federal agency. If the contemplated sale to a private party goes through, the building will still be subject to state historic property preservation laws, see TEX. LOCAL GOV'T. CODE ANN. . § 315.006(b) (West 1993) (prohibiting unauthorized destruction of an "historic structure"), just as it would have if it had remained in private hands all along. ³

The prohibition against restraining the FDIC, with its unambiguous "No court," applies as much to the courts of appeals as to the district courts. Having determined that § 1821(j) bars the National Trust's suit to enjoin the sale of the Dr. Pepper Building, ⁴ we deny the application for a stay, and affirm the district court's order dismissing the suit for lack of jurisdiction.

WALD, Circuit Judge, dissenting:

Even if the majority should ultimately be proven right that 12 U.S.C. § 1821(j) deprives this court of jurisdiction to enjoin the sale and demolition of this historic building that has come under the FDIC's supervision, I believe it is singularly inappropriate...