COIT INDEPENDENCE JOINT VENTURE v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, AS RECEIVER OF FIRSTSOUTH, F. A.
No. 87-996
Supreme Court of the United States
Argued November 1, 1988—Decided March 21, 1989
489 U.S. 561
Robert E. Goodfriend argued the cause for petitioner. With him on the briefs was Paul E. Galvin.
Jeffrey P. Minear argued the cause for respondent. With him on the brief were Solicitor General Fried and Deputy Solicitor General Cohen.*
JUSTICE O‘CONNOR delivered the opinion of the Court.
This case presents the question whether Congress granted the Federal Savings and Loan Insurance Corporation (FSLIC), as receiver, the exclusive authority to adjudicate the state law claims asserted against a failed savings and loan association. We hold that Congress did not grant FSLIC such power and that the creditors of a failed savings and loan association are entitled to de novo consideration of their claims in court. We also hold that creditors are not required to exhaust FSLIC‘s current administrative claims procedure before filing suit because the lack of a clear time limit on FSLIC‘s consideration of claims renders the administrative procedure inadequate.
From 1983 to 1986, Coit Indеpendence Joint Venture (Coit), a real estate concern, borrowed money from FirstSouth, F. A., a federal savings and loan association. Subsequent disagreements led Coit to file suit against FirstSouth in October 1986 in the 95th Judicial District Court of Dallas County, Texas. In its state court complaint, Coit alleged that it had received two loans of $20 million and $30 million to purchase two parcels of undeveloped land. Coit alleged that FirstSouth had required it to pay a “profit participation” interest in any profits derived from sale of the property as a condition of receiving the loans. Coit asserted that this “profit participation” fee was interest that, when added to the regular accrued interest rate, made the loans usurious under Texas law. Complaint ¶¶ 4-13, App. 17-22. Coit also alleged that FirstSouth orally agreed to allow Coit to draw down funds to improve the property purchased with the $30 million loan, and to carry the loan, by executing any necessary renewal notes, for at least five yеars unless the property was sold earlier. Coit charged that FirstSouth violated this agreement in August 1986 by refusing to renew the notes and threatening to foreclose on the property.
Coit sought damages from FirstSouth for usury. Alternatively, Coit sought a declaratory judgment that FirstSouth was Coit‘s partner by virtue of its profit sharing interest in the joint venture and that FirstSouth had breached its fiduciary duty and its implied duty of good faith and fair dealing. Complaint ¶¶ 11-16, App. 21-23. Coit also sought a declaration that any outstanding note was unenforceable.
On December 4, 1986, two months after Coit filed suit in state court, the Federal Home Loan Bank Board (Bank Board) determined that FirstSouth was insolvent and appointed FSLIC as receiver. Substituting itself for FirstSouth in Coit‘s state suit, FSLIC removed the case to federal court. In February 1987, the District Court dismissed the suit for lack of subject matter jurisdiction, relying on North Mississippi Savings & Loan Assn. v. Hudspeth, 756 F. 2d 1096 (CA5 1985), cert. denied, 474 U. S. 1054 (1986).
In Hudspeth, the Court of Appeals for the Fifth Circuit held that FSLIC has exclusive jurisdiction to adjudicate claims against the assets of an insolvent savings and loan association placed in a FSLIC receivership, subject first to review by the Bank Board and then to judicial review under the Administrative Procedure Act. 756 F. 2d, at 1103. The Hudspeth court relied on two statutory provisions in reaching this conclusion. First,
The Fifth Circuit rejected Hudspeth‘s argument that adjudication of claims against a debtor, as opposed to аllocation of assets to satisfy those claims, is not a receivership function, and thus that judicial resolution of claims would not “restrain or affect” FSLIC‘s powers as receiver. The court reasoned that judicial “resolution of even the facial merits of claims... would delay the receivership function of distribution of assets” and that “such a delay is a ‘restraint’ within the scope of the statute.” Id., at 1102. The court found further support for its reading of the statute in the Board‘s regulations giving FSLIC the power to disallow claims not “proved to its satisfaction,”
Since Hudspeth was decided, FSLIC has successfully urged state and federal courts to dismiss a broad variety of claims for lack of subject matter jurisdiction. Those creditor claims have included contract and tort claims, see, e. g., Resna Associates, Ltd. v. Financial Equity Mortgage Corp., 673 F. Supp. 1371, 1372 (NJ 1987), alleged antitrust violations, Red Fox Industries, Inc. v. FSLIC, 832 F. 2d 340 (CA5 1987), and even racketeering claims, Baer v. Abel, 637 F. Supp. 343, 347 (WD Wash. 1986).
In the instant case, Coit appealed the District Court‘s dismissal of its case for lack of subject matter jurisdiction to the Fifth Circuit. That court acknowledged that since Hudspeth was dеcided two other courts had held that Congress did not intend FSLIC to enjoy exclusive jurisdiction over creditors’ state law claims against savings and loan associations under FSLIC receivership. Morrison-Knudsen Co. v. CHG International, Inc., 811 F. 2d 1209 (CA9 1987), cert. dism‘d sub nom. FSLIC v. Stevenson Assocs., 488 U. S. 935 (1988); Glen Ridge I Condominiums, Ltd. v. FSLIC, 734 S. W. 2d 374 (Tex. App. 1986), writ of error denied, 750 S. W. 2d 757 (Tex. 1988), cert. pending, No. 88-659. However, the Fifth Circuit held that it was bound by Hudspeth and affirmed the District Court‘s dismissal of Coit‘s suit. The court also concluded that Coit‘s constitutional challenges to exclusive FSLIC jurisdiction were not ripe for review. Coit Independence Joint Venture v. FirstSouth, F. A., 829 F. 2d 563, 565 (1987).
On September 28, 1987, the deadline established by FSLIC for the filing of creditor claims against FirstSouth, Coit filed its proof of claim with FSLIC for approximately $113 million. Six months later, FSLIC notified Coit that its claim had been “retained for further review.” There has been no further action on Coit‘s claim.
II
Resolution of this case requires us to interpret statutory provisions governing FSLIC and the Bank Board that wеre enacted over a span of 50 years. Moreover, those provisions are embedded in a complex statutory framework. Prior to the Great Depression of the 1930‘s, savings and loan associations were chartered and regulated by the States alone. However, in the face of heavy withdrawals from savings accounts, mortgage loan defaults, and limited funds for home mortgages during the depression, Congress passed the Federal Home Loan Bank Act, 47 Stat. 725, now codified, as amended,
One year later, Congress enacted the Home Owners’ Loan Act of 1933 (HOLA), whiсh empowered the Bank Board to organize, regulate, and charter federal savings and loan associations. 48 Stat. 128, as amended,
“[FSLIC] shall have power to carry on the business of and to collect all obligations to the insured institutions, to settle, compromise, or release claims in favor of or against the insured institutions, and to do all other things that may be necessary in connection therewith, subject only to the regulation of the court or other public
authority having jurisdiction over the matter.” NHA, § 406(d), 48 Stat. 1260, now codified, as amended,
12 U. S. C. § 1729(d) .
In the Housing Act of 1954, Congress amended both the NHA and the HOLA. The Housing Act amended § 5(d) of the HOLA by setting forth specific grounds for the Bank Board‘s appointment of a conservator or receiver for a federal savings and loan association, such as insolvency, violation of law or regulation, concealment of books or records, and unsound operation. Housing Act of 1954, § 503, 68 Stat. 635-636, as amended,
The first major amendments to the 1934 NHA were made in the Financial Institutions Supervisory Act of 1966 (FISA), Pub. L. 89-695, 80 Stat. 1028, 1036, now codified, аs amended,
If the Bank Board appointed a conservator or receiver, the savings and loan association could, within 30 days, bring an action in United States district court “for an order requiring the Board to remove such conservator or receiver.” Ibid.
“Except as otherwise provided in this subsection, no court may take any action for or toward the removal of any conservator or receiver, or, except at the instance of the Board, restrain or affect the exercise of powers or functions of a conservator or receiver.” FISA, 80 Stat. 1033,
12 U. S. C. § 1464(d)(6)(C) .
The FISA also added greater scope to the Bank Board‘s power to make rules and regulations, including rules and regulations governing the liquidation of failed savings and loan associations and the conduct of receiverships. FISA, 80 Stat. 1035,
Subsequent statutes have extended the Bank Board‘s power to appoint FSLIC as receiver of insolvent state-chartered thrifts. See Bank Protection Act of 1968, Pub. L. 90-389, § 6, 82 Stat. 295-296, as amended,
Once FSLIC is appointed receiver of an insolvent savings and loan association, FSLIC steps into the shoes of the association and takes cоntrol of its assets. If FSLIC liquidates the association, it must promptly reimburse insured depositors out of its insurance fund.
III
Coit argues that Hudspeth incorrectly held that Congress granted FSLIC adjudicatory power over creditors’ claims against failed savings and loan associations under FSLIC receivership, subject only to limited judicial review in the courts under the Administrative Procedure Act,
A
Congress granted FSLIC various powers in its capacity as receiver, but they do not include the power to adjudicate creditors’ claims. Section 406 of the NHA conferred upon
“Settlement and compromise strongly suggest the presence of the power of the other party to take the dispute to court. Settlement and compromise are to avoid that result. A body with the power to say ‘yes’ or ‘no’ with the force of law has much less need to settle or to compromise.”
Similarly, the directive that FSLIC as receiver “shall pay all valid credit obligations of the association” cannot be read to confer upon FSLIC the power to adjudicate claims against an insolvent savings and loan association subject only to review under the Administrative Procedure Act. This provision simply empowers FSLIC, much like an ordinary insurance company, to pay those claims proved to its satisfaction. It does not give FSLIC the power to adjudicate claims with the force of law; nor does it preclude claimants from resorting to the courts for a determination of the validity of their claims.
Moreover,
B
The Hudspeth decision rested primarily on
First, this language does not add adjudication of creditor claims to FSLIC‘s receivership powers. It simply prohibits courts from restraining or affecting FSLIC‘s exercise of those receivership “powers and functions” that have been granted by other statutory sources. As discussed above,
Second, when the statutory context in which the provision appears is examined, it is clear that it does not have the meaning that Hudspeth attributed to it. Section 1464(d)(6)(A) sets forth the specific grounds for appointment of a receiver by the Bank Board and expressly authorizes associations placed in receivership to bring suit within 30 days in United States district court to challenge the receiver‘s appointment. Following the provision for a court challenge to remove the receiver comes the statutory language prohibiting courts, “[e]xcept as otherwise provided in this subsection,” from taking any action to remove the receiver or to “restrain or affect” the exercise of the receiver‘s “powers or functions.” When read in its statutory context, this provision prohibits untimely challenges to the receiver‘s appointment or collateral attacks attempting to restrain the receiver from carrying out its basic functions. It does not divest state and federal courts of subject matter jurisdiction to determine the validity of claims against institutions under a FSLIC receivership. See Note, 10 W. New Eng. L. Rev., at 257-260; Baxter, Life in the Administrative Track: Administrative Adjudication of Claims Against Savings Institution Receiverships, 1988 Duke L. J. 422, 484-485.
That the “restrain or affect” language should not be read to preclude de novo court adjudication of the validity of creditors’ claims against savings and loans in receivership is reinforced by thе fact that at the time of the statute‘s enactment it was well established at common law that suits establishing the existence or amount of a claim against an insolvent debtor did not interfere with or restrain the receiver‘s possession of the insolvent‘s assets or its exclusive control over the distribution of assets to satisfy claims. Morris v. Jones, 329 U. S.
“No one can obtain part of the assets or enforce a right to specific property in the possession of the liquidation court except upon application to it. But proof and allowance of claims are matters distinct from distribution. . . . ‘The latter function, which is spoken of as the liquidation of a claim, is strictly a proceeding in personam.’ The establishment of the existence and amount of a claim against the debtor in no way disturbs the possession of the liquidation court, in no way affects title to the property, and does not necessarily involve a determination of what priority the claim should have.” 329 U. S., at 549 (citations omitted).
Moreover, suits to establish the validity and аmount of a claim against an insolvent national bank under a statutory receivership were not seen as interfering with the powers or functions of the receiver. See Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 401-402 (1872).
Looking to the practical effects of court adjudication on the receivership process, the Hudspeth court erroneously assumed that such adjudication would “restrain” FSLIC‘s exercise of its receivership powers by delaying its prompt liquidation of failed savings and loans. As this Court held in Riehle v. Margolies, a receiver‘s distribution of assets need not be postponed pending the resolution of disputed claims in other courts: “The power to fix the time for distribution may include the power... to decline to postpone distribution awaiting disposition of litigation in another court over a contested claim.” 279 U. S., at 224. See also 3 R. Clark, Law and Practice of Receivers § 649(c) (3d ed. 1959). Indeed, the Bank Board‘s own regulations provide for interim distributions. See
C
Several provisions of the NHA indicate that Congress clearly envisaged that the courts would have jurisdiction over suits by creditors against FSLIC as receiver. When it established FSLIC in 1934, Congress provided that FSLIC could “sue and be sued, complain and defend, in any court of law or equity, State or Federal.” NHA, § 402(c)(4), 48 Stat. 1256, now codified, as amended,
“Notwithstanding any other provision of law, ... (B) any civil action, suit, or proceeding to which [FSLIC] shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy; and (C) [FSLIC] may, without bond or security, remove any such action,
suit, or proceeding from a State court to the United States district court...: Provided, That any action, suit, or proceeding to which [FSLIC] is a party in its capacity as conservator, receiver, or other legal custodian of an insured State-chartered institution and which involves only the rights or obligations of investors, creditors, stockholders, and such institution under State lаw shall not be deemed to arise under the laws of the United States.” FISA, 80 Stat. 1042,
12 U. S. C. § 1730(k)(1) (emphasis added).
The proviso clause sets out the types of suits Congress expected FSLIC to defend against in state courts, including suits by creditors against FSLIC as receiver for state-chartered savings and loan associations. Moreover, there is no indication that Congress intended to treat state-chartered and federally chartered associations differently in this respect. See, e. g.,
Because we conclude that FSLIC has not been granted adjudicatory authority by Congress and that Coit is entitled to de novo consideration of its state law claims in court, we need not reach Coit‘s claim that adjudication by FSLIC subject only to judicial review under the Administrative Procedure Act would violate Article III of the Constitution under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982). Similarly, we need not reach Coit‘s due process and Seventh Amendment challenges to adjudication by FSLIC of its state law claims. We note, however, that the usury and breach of fiduciary duty claims raised by Coit, like the contract disputes in Morrison-Knudsen Co., 811 F. 2d, at 1221, involve “private rights” which are at the
IV
Although FSLIC argued below that the District Court lacked subject matter jurisdiction over Coit‘s state law claims, respondent now defends the Fifth Circuit‘s judgment on the narrower ground that “the Bank Board and FSLIC plainly do have power to require claimants first to present their claims to FSLIC, and exhaust the administrative process leading to allowance, settlement, or disallowance” before suing on the claims in cоurt. Brief for Respondent 20, and n. 13. Coit does not challenge the Bank Board‘s authority to establish a voluntary claims procedure. Coit contends, however, that the statutory provisions relied on by FSLIC do not demonstrate a congressional intent to require exhaustion of administrative remedies by claimants before they can file suit in court. Reply Brief for Petitioner 3.
A
Our past cases have recognized that exhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute. Weinberger v. Salfi, 422 U. S. 749, 766 (1975); Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50-51 (1938). Where a statutory requirement of exhaustion is not explicit, “courts are guided by congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme.” Patsy v. Florida Board of Regents, 457 U. S. 496, 502, n. 4
Congress gave the Bank Board a broad statutory mandate to reorganize or liquidate an insolvent federal savings and loan, using FSLIC as receiver for that purpose.
Over 45 years ago, the Bank Board concluded that an administrative claims procedure was necessary in order for FSLIC to carry out its statutory responsibility to pay valid claims and to settle or disallow claims while liquidating the assets of a failed savings and loan association in an orderly manner. Thus, in 1941, acting pursuant to its broad rulemaking authority under § 5(d) of the HOLA, the Bank Board established a claims procedure that remained in effect, largely unaltered, until 1986, when FSLIC‘s post-Hudspeth interim procedures became operative. 6 Fed. Reg. 4413, 4415 (1941).
At the time of the Hudspeth decision, the Bank Board‘s regulations provided that once FSLIC became receiver it would publish a notice to the association‘s creditors to present their claims by a specified date.
Following the Hudspeth decision, the Bank Board established a dramatically different and more elaborate set of “interim procedures” governing creditor claims. These interim procedures have been used by FSLIC since July 1, 1986. 53 Fed. Reg. 13105 (1988).2 Under these procedures, FSLIC as receiver first notifies all potential claimants of their right to present a claim by a specified date, which is not less than 90 days from the date of the notice. Id., at 43854 (to be codified at
In reviewing a claim, the agent may require the claimant to submit additional documentation, answer written questions, provide a sworn statement, and submit a memorandum addressing legal issues. Ibid. (to be codified at
If a claim is ultimately disallowed by FSLIC in whole or in part, the Special Representative notifies the claimant of its right to Bank Board review of the determination. Ibid. (to be codified at
Under these procedures, the Bank Board may make its own findings of fact and conclusions of law based upon the Administrative Record. Ibid. (to be codified at
B
Respondent argues that just as the Bank Board has the authority under
Although the language of the statutes governing FSLIC and the Bank Board does not explicitly mandate exhaustion of administrative remedies as a precondition for filing suit, the NHA does require that FSLIC liquidate the assets of a failed savings and loan “in an orderly manner,”
If the Bank Board‘s regulations only required claimants to give FSLIC notiсe of their claims and then to wait for a reasonable period of time before filing suit while FSLIC decided whether to pay, settle, or disallow the claim, we have no doubt that such regulations would be a reasonable exercise of the Bank Board‘s broad rulemaking power under
In cases where suit has already been filed against a savings and loan association before FSLIC is appointed receiver, FSLIC will receive notice of those claims when it steps into the shoes of the failed savings and loan and takes control of its assets. Trial courts can then determine, in their discretion, whether to stay the proceedings for a limited time, based on such factors as the stage of the litigation and FSLIC‘s need to assess the possibility of settling the claims. Seе Landis v. North American Co., 299 U. S. 248, 254-255 (1936); Leyva v. Certified Grocers of California, Ltd., 593 F. 2d 857, 863-864 (CA9 1979); Marshall v. Hartford Fire Ins. Co., 78 F. R. D. 97, 107 (Conn. 1978).
In our view, it is incorrect to characterize our exhaustion analysis in this Part as a ruling that the enabling legislation of FSLIC and the Bank Board “pre-empts” state law. See post, at 588-589 (SCALIA, J., concurring in part and concurring in judgment). Our discussion in Part IV does not purport to be predicated on any finding that federal law occupies the field to the exclusion of a substantive body of state law or regulations, or that the enforcement of state law would conflict with federal substantive policies. Indeed, we hold explicitly in Part III that Coit is entitled to de novo consideration of its state law claims in court, and that FSLIC has no statutory authority to divest the courts of subject matter jurisdiction over those claims. See supra, at 578-579. Moreover, the minimal delay entailed in a notice and reasonable time requirement is unlikely to “extinguish” state causes of action in the usual case. On the facts before us today, we need not address a case such as that posited by JUSTICE SCALIA, in which a state statute of limitations may expire during a reasonable waiting period established by FSLIC.
The Bank Board‘s present regulations, however, exceed its statutory authority in two respects. First, the regulations purport to confer adjudicatory authority on FSLIC and on the Bank Board to make binding findings of fact and conclusions of law, subject only to “judicial review” presumably under the Administrative Procedure Act as opposed to de novo judicial determination. See, e. g., 53 Fed. Reg. 43852, 43856, 43858 (1988) (to be codified at
Second, the regulations do not place a clear and reasonable time limit on FSLIC‘s consideration of whether to pay, settle, or disallow claims. Under the current regulations, FSLIC must allow, disallow, or retain a claim “for further review” within six months after the filing of the claim or after the end of the 90-day notice period, 53 Fed. Reg. 43855 (1988), but no time limit is established for FSLIC‘s consideration of those claims retained for further review. Thus, as Cоit so aptly puts it: “These procedures give FSLIC virtually unlimited discretion to bury large claims like Coit‘s in the administrative process, and to stay judicial proceedings for an unconscionably long period of time given FSLIC‘s purportedly limited objectives of centralizing the claims process and deciding whether claims should be paid or not.” Reply Brief for Petitioner 18.
Indeed, Coit first filed its claim for approximately $113 million with FSLIC on September 28, 1987. Six months later, on March 18, 1988, Coit was notified that its claim was being retained for “further review.” As of the date of oral argument, Coit‘s claim had been pending before FSLIC for over 13 months, and FSLIC had yet to make its initial determination. Since the Bank Board itself can take six months to dispose of any appeal, Coit‘s claim has essentially been relegated to a “black hole” from which it may not emerge before the statute of limitations on Coit‘s state law claims has run.
Because the Bank Board‘s regulations do not place a reasonable time limit on FSLIC‘s consideration of claims, Coit cannot be required to exhaust those procedures. Coit is thus entitled to proceed directly to court for a de novo determination on the merits of its state law claims.
In sum, we conclude that Congress has not granted FSLIC the power to adjudicate creditors’ claims against the assets of a failed savings and loan association under FSLIC receivership, and that creditors are entitled to de novo consideration of their claims in court. Moreover, creditors are not required to exhaust the current administrative claims procedure established by the Bank Board because it places no reasonable time limit on FSLIC‘s consideration of creditor claims. Accordingly, the judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
I join Parts I, II, and III of the Court‘s opinion. I refrain from joining Part IV and thus concur only in the judgment. My cоncern with Part IV is that it seems to me to amount to only an advisory opinion on what the Bank Board may do, based on a surmise of what the Bank Board might someday conclude it must do in order to liquidate “in an orderly manner.”
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I agree with the judgment of the Court, and join Parts I through III of its opinion. I do not join Part IV, however, because there is no precedent and in my view no sound policy justification for (1) using the doctrine of exhaustion of administrative remedies as a basis for pre-empting state law, and (2) imposing upon the Bank Board the obligation to set forth by rule a specific time period within which FSLIC must act upon claims.
I
This case is not about exhaustion; it is about pre-emption. To my knowledge, the doctrine of exhaustion of administrative remedies has never been used, as it is in today‘s opinion, as a means of pre-empting state law. We normally apply the doctrine by refusing to entertain a federal claim unless and until the plaintiff has resorted to the federally created administrative remedies for the grievance underlying that claim. See, e. g., Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1, 20-26 (1974); McGee v. United States, 402 U. S. 479, 483-486 (1971). That is a fair assessment of the congressional intent in creating the administrative remedies.
In the present case, by contrast, the Court applies what purports to be the exhaustion doctrine, not to determine when Congress wished federal claims to be first assertible, but to determine when Congress wished to prohibit the as-
What is enough to suggest a congressional intent to defer the maturing of a federal cause of action is not enough to suggest a congressional intent to override state law. We have repeatedly said that federal law pre-empts state law in traditional fields of state regulation only when “that was the clear and manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); see also Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U. S. 495, 500 (1988); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 715 (1985); Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). These assurances are meaningless if the directions to FSLIC to “pay all valid credit obligations,”
II
It is, however, an understatement to say that what is involved is merely a “suspension” of state-created rights. The
But to achieve this limited benefit, the Court creates yet another novel doctrine that we may have cause to regret. I know of no precedent for the proposition that an agency‘s regulations are “arbitrary, capricious” or “otherwise not in accordance with law,”
It seems to me that, in Part IV of its opinion, the Court labors courageously—but in the last analysis unsuccessfully—to supply what is lacking in FSLIC‘s organic law to cover the extraordinary situation with which the agency is now confronted. Ordinarily, the filing of a lawsuit against an insolvent thrift would pose no major problem. Service of summons in the suit would itself constitute notice of the claim, and if FSLIC was interested in granting or settling the claim it could request the state or federal court to dеfer further proceedings for a reasonable time pending settlement negotiations. It is hard to imagine that any court would deny such a request. It is only the current enormous volume of claims against insolvent thrifts, in a diversity of courts, that makes it impracticable for FSLIC to proceed in this fashion. I do not think it our role to supply the emergency provisions Congress has not enacted—and we are not much good at it anyway, since I doubt that (even at the expense of making some bad law) we have succeeded in giving FSLIC meaningful relief. The agency‘s main problem, I suspect, is that the number of claims it must review is so high that it cannot give courts assurances that it will be able to address
For these reasons, although I join in the reversal of the decision below, I do so on the more categorical ground that FSLIC‘s claim procedures cannot pre-empt the filing of suits under state law.