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

• Decision Date: 22 April 1994
• Docket Number: No. 93-5137,93-5137
• Citation: 21 F.3d 469
• Parties: NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES; Historic Preservation League, Inc., A Non-Profit Corporation; Preservation Texas, Inc., A Non-Profit Corporation, 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 469

21 F.3d 469

305 U.S.App.D.C. 375

NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES; Historic Preservation League, Inc., A Non-Profit Corporation; Preservation Texas, Inc., A Non-Profit Corporation, 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.

Argued March 25, 1994.

Decided April 22, 1994.

Appeal from the United States District Court for the District of Columbia.

Richard B. Nettler, Washington, DC, argued the cause for appellants. With him on the briefs were David A. Doheny, Elizabeth S. Merritt and Andrea C. Ferster, Washington, DC.

Jerome A. Madden, Counsel, F.D.I.C., Washington, DC, argued the cause for appellees. With him on the brief were Ann S. DuRoss, Asst. Gen. Counsel, and Richard J. Osterman, Jr., Sr. Counsel, F.D.I.C., Washington, DC.

Kirk Kelso Van Tine and P. Matthew Sutko, Washington, DC, entered appearances for amicus curiae Resolution Trust Corp.

Stuart W. Bowen, Jr., Austin, TX, entered an appearance for amicus curiae Texas Historical Com'n.

Before: WALD, SILBERMAN, and RANDOLPH, Circuit Judges.

Opinion PER CURIAM.

Concurring opinion filed by Circuit Judge WALD in which Circuit Judge SILBERMAN joins.

Concurring opinion filed by Circuit Judge RANDOLPH.

PER CURIAM:

Upon consideration of the briefs and oral argument on rehearing, the original panel opinion, reported as National Trust for Historic Preservation v. FDIC, 995 F.2d 238 (D.C.Cir.1993), is ordered reinstated, except for the analysis of South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), contained in footnote one, which is now controlled by Judge Wald's concurrence.

The original panel held that 12 U.S.C. Sec. 1821(j), which bars courts from restraining or affecting the FDIC in the exercise of its powers or functions as a conservator or receiver, applied in this case as a result of 12 U.S.C. Sec. 1823(d)(3)(A). 995 F.2d at 240. Section 1823(d)(3)(A) 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 sections 1821 and 1825(b) of this title." Shortly after our opinion issued, the Fifth Circuit, in a somewhat different factual setting, permitted an injunction action against the FDIC to go forward. Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545 (5th Cir.1993). Nothing said in Sierra Club persuades us to alter the panel's original decision.

There is no question that the "rights, powers, privileges, and authorities" granted the FDIC under Sec. 1821 devolve upon it when it acquires assets or assumes liabilities pursuant to Sec. 1823. In Sierra Club, however, the Fifth Circuit expressed doubts about whether the FDIC had acted under Sec. 1823, or under some other provision. 992 F.2d at 549-50. Whatever may have been the situation there, in this case there is no doubt that the FDIC acquired the Dr. Pepper Headquarters Building pursuant to Sec. 1823, as our original opinion recognized. 995 F.2d at 240. Appellants do not contend otherwise.

The Fifth Circuit also believed that Sec. 1823(d)(3)(A) did not "clearly and unambiguously" give "the FDIC the 'privilege' to be free of the court's equity jurisdiction." 992 F.2d at 550. The court offered no explanation for this conclusion and we do not agree with it. Our original opinion concluded that the FDIC's immunity from judicial restraint is among the "rights, powers, privileges, and authorities" (Sec. 1823(d)(3)(A)) contained in Sec. 1821. 995 F.2d at 240. It is in that category for two reasons. First, it is set forth in a subsection of Sec. 1821, that is, in Sec. 1821(j). Second, the FDIC's immunity from judicial restraint, like the FDIC's exemption from state taxation and the immunity of its property from levy, attachment or garnishment, which Sec. 1823(d)(3)(A) also bestows on the FDIC through its reference to Sec. 1825(b), is among the FDIC's "rights, powers, privileges, and authorities" when it is acting as a receiver. It is no answer to say, as appellants do, that Sec. 1821(j) merely "operates as a limitation on the rights of third parties to obtain injunctive or equitable relief against the FDIC." Brief for Appellants at 15. By so limiting the powers, rights and privileges of third parties, Sec. 1821(j) increased the rights, privileges and powers of the FDIC. To take away one person's "right" to sue another is to give the other the "right" not to be sued. The court in Sierra Club, 992 F.2d at 550, thought it significant that Sec. 1823(d)(3)(A) "does not speak directly to the equitable jurisdiction of the federal courts." We attach no importance to this. The provision is specific enough--every Sec. 1821 right, power, privilege or authority of the FDIC as receiver is included. Section 1823(d)(3)(A)'s reference to Sec. 1821 necessarily encompasses Sec. 1821(j). Inclusion by reference is a time-honored drafting technique, without which federal statutes would become even more unwieldy than they already are. ¹

It is worth adding that, even apart from statutory language, the line drawn in Sierra Club raises problems. The FDIC is authorized to operate in the capacity of a corporate insurer under Sec. 1823, see FDIC v. Nichols, 885 F.2d 633, 636 (9th Cir.1989), and in the capacity of a receiver for failed financial institutions under Sec. 1821, see 12 U.S.C. Sec. 1821(c)(2) & (3). The FDIC has discretion regarding whether it will wear one hat or the other, or both. To hold, as the Fifth Circuit did, that when the FDIC acts in its corporate capacity, Sec. 1823(d)(3)(A) does not insulate it from judicial restraint pursuant to Sec. 1821(j), is to create an incentive for the FDIC to act as receiver in order to avoid the consequences of litigation and delay. Such a system would make little sense. The FDIC's charge is to maximize the value of the failed institution's assets and it should be free to decide whether this is best accomplished if it acts as a receiver or in its corporate capacity or both. ²

The judgment of the district court dismissing the suit for lack of jurisdiction is affirmed for the reasons stated in the original panel opinion and for the reasons stated above.

WALD, Circuit Judge, with whom SILBERMAN, Circuit Judge, joins, concurring:

With the benefit of full briefing and argument, I now agree with the result and the basic reasoning of the reinstated panel opinion on the construction of 12 U.S.C. Sec. 1821(j) and its application to the FDIC in its corporate capacity via 12 U.S.C. Sec. 1823(d)(3)(A). That plenary treatment allows us to decide this important case of first impression in our circuit with the necessary confidence which I, for one, did not have months ago when forced to a decision "in barely over a week on an unargued stay motion." National Trust for Historic Preservation in the United States v. FDIC, 995 F.2d 238, 244 (D.C.Cir.1993) (Wald, J., dissenting). I was concerned then--I believe justifiably--about "potentially immunizing an agency from court enforcement of the entire U.S. Code," a result which I thought warranted an in-depth review of the statute, its structure, purpose and history. It seemed counter-intuitive that the FDIC, acting in its receiver capacity, could "operat[e] a factory or even a hazardous waste facility in a manner that was causing serious health or environmental damage and that allegedly violated the Clean Water Act or the Occupational Safety and Health Act[, and] court[§ would be] powerless to take 'any action ... to restrain or affect' that operation, unless the FDIC 'has acted or proposes to act beyond, or contrary to, its statutorily prescribed, constitutionally permitted powers or functions.' " Id. at 244 (Wald, J., dissenting) (quoting panel majority, id. at 240). Indeed even more horrendous hypotheticals could be constructed. Would the courts be powerless if the FDIC chose to sell crack cocaine in an effort to liquidate assets discovered in an unclaimed safety deposit box of a failed bank? It is of course by the use of such unlikely scenarios that judges test the integrity and inevitability of "plain meaning" interpretations.

While after further study and reflection I agree with the original panel majority that the language of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections in the United States Code), supports its construction, the result is sufficiently " 'odd' " so as to oblige us to "search for other evidence of congressional intent to lend the term its proper scope." Public Citizen v. United States Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) (quoting Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989)). For example, in South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), the Supreme Court considered a similarly sweeping limitation on court action appearing in the Tax Anti-Injunction Act, 26 U.S.C. Sec. 7421(a): "[N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." In Regan, the Court turned to the Tax Anti-Injunction Act's legislative history, despite the fact that the Act's language "could scarcely be more explicit," Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). The legislative history discussed in Regan by no means abounded with detailed revelations of congressional intent, but the Court nonetheless concluded from it that the Act's "purpose and the circumstances of its enactment indicate that Congress did...