Federal Deposit Insurance v. Meyerland Co.

municipal services from utility or other no Therefore, Paige- City of Westlake. homestead, and rural is a Farm

brooke up to two hun- to claim

Bradley is entitled family homestead her rural

dred acres as 41.002(b)(1).

exemption. id.

III. CONCLUSION law, Bradley is enti- debtor Texas

Under family protection homestead

tled to rural Paigebrooke acres

covering all 129.47 courts below judgment of the

Farm. The remanded to the and the case is

is reversed bankruptcy pro- for further

district court opinion.

ceedings consistent AND REMANDED.'

REVERSED CO., Matter of: MEYERLAND

In the Adkinson, M.

and William

Debtors. INSURANCE

FEDERAL DEPOSIT Manager of the Reso- FSLIC

CORP. Fund as Receiver for Continen-

lution Association, Savings Appellant,

tal

v. CO.,

MEYERLAND and William

Adkinson, Appellees.

No. 89-6118. Appeals, States Court of

Fifth Circuit. 13, 1992.

May (Tex.Civ.App. analysis, exam- S.W.2d the Texas courts the traditional — Eastland Williams, writ); 78 S.W.2d Rockett v. whether a to determine ine several factors dism’d); (1) (Tex.Civ.App. writ the location of is rural or urban: homestead — Dallas (Tex. Grove, Purdy S.W.2d 1081-82 respect to the limits of the munici- land with ref'd); (3) Civ.App. see also 43 (2) question; writ pality; of the lot in the situs — Eastland (1985) (and services; cases 15§ Homesteads municipal Tex.Jur.3d utilities the existence municipal therein). availability of (4) adjacent property; cited use of the lot and blocks, streets, merely in this one factor and services is (5) platted utilities presence of Winstead, analysis. Corp. traditional like. See Vistron Osterman, Jr., F.D.I.C., Atty., Richard J. Cooke, Brown, Maroney Clay & Walter Hartline, Houston, Tex., appel- Oaks lant. O’Brien, Houston, Tex., for

Michael L. Meyerland Co. Collins, Kistler,

Daniel L. Shan- Robert Sanders, West, Adams, non M. Webb & Allbritton, Houston, Tex., Adkinson. POLITZ, Judge, Before Chief GARZA, KING, G. REYNALDO GARWOOD, JOLLY, HIGGINBOTHAM, DUHÉ, WIENER, DAVIS, SMITH, GARZA, DeMOSS, M. Circuit EMILIO Judges.1 Judges H. Jones and Rhesa H. Barksdale are recused. Edith DUHÉ, Judge: I. Power Under Removal Circuit FIRREA, Congress enacted a broad Appellate Proceedings Below and law, banking response revision Jurisdiction ongoing savings recent and and loan Adkinson Meyerland and William M. Co. crisis. See Meliezer v. Resolution Trust Savings Continental Association 879, (5th Cir.1992); sued Corp., 952 F.2d 881 (“Continental”) for, things, among Supervi other Smallwood Thrift Office of (6th Cir.1991). sion, 894, 925 F.2d One usury and in state court. Continen- fraud ways prob of the FIRREA addresses the for fraud and breach tal counterclaimed facing thrift lems this nation’s institutions Conti- contract. The trial awarded through “provisions which en expand, $1,124,- $30,031,089.99and nental Adkinson clarify powers and enforcement hance Meyerland Adkin- damages. 109.59 in and regulatory agen financial institution appealed. son 101-54(1), H.R.Rep. 101st cies.” No. filed, 291, 311, was the Federal Cong., reprinted

After the 1st in Sess. 86, Cong. 1989 U.S.Code & Admin.News Board Continen- Home Loan Bank declared Specifically, greatly FIRREA ex 107. appointed the Federal tal insolvent and regulating in pands the FDIC’s role Savings Corporation Loan Insurance supervising such institutions. at 310- Id. (FSLIC) receiver. removed as FSLIC 11, reprinted Cong. 1989 U.S.Code & in on court which remanded to district Note, Admin.News at 106-07. See also 21, April Powers The FDIC’s Enhanced Over Sav ings Does FIRREA Make It Associations: 9, 1989, August On the Financial S381, “SAIF”?, 59 Ford.L.Rev. S382 Reform, En Recovery and Institutions requires This case us examine 101-73, (FIRREA), Act Pub.L. forcement powers under FIR- extent FDIC’s Fed was enacted. The 103 Stat. jurisdictional At re- REA. issue are (FDIC) Deposit Corporation eral Insurance provisions giving the FDIC moval broad as the FSLIC the receiver succeeded gain in power to access to federal courts then removed Continental and party pursuant is a actions to which it 7, September 1989 under on provisions relating to re- FIRREA. The (12 209[4] moval, 1819(b)(2), found in 12 read U.S.C. § 1819(b)(2)(B)).2 again The district court as follows: appellees remanded and awarded the (A) $2,500 in sanctions. (D), Except provided subparagraph in as civil nature at common all suits aof appeals. Although re The FDIC equity Corpora- in law or generally appealable, mand orders are tion, capacity, shall 1819(b)(2)(C) ap 12 U.S.C. authorizes an under the laws deemed arise appeal presents This two peal this case. United States. (1) 1819(b)(2) issues: whether (B) Removal a state authorizes the FDIC remove (D), Except provided subparagraph (2) appellate proceeding, and whether may, without bond awarding suit, erred sanc action, the district court security, any such remove proceeding a state court to the tions. from change Although right the tribunal which FIRREA was enacted after but rather to case, initiated, changes&emdash;barring spe clear that will hear the those current it is contrary&emdash;will cifically expressed intent to it. See v. Merrill utilize Turboff effect.") (citing Pierce, Fenner, Smith, Hallowell v. Lynch, F.2d have immediate & Commons, (5th Cir.1989) ("When Congress adopts 60 L.Ed. (1916)); Corp., pending, statutory changes In re Resolution Trust while a suit is (8th Cir.1989). F.2d effect of which is not to eliminate a substantive appropriate district many portions of the FIRREA as establish- court, (emphasis supplied).3 ing the primacy of the Federal interest as regards the solvency and viability of the power conferred FIRREA to deposit Federal system.”). insurance invoke federal and to remove See Car from state court is substantial. In the case us, first FSLIC and Independent rollton-Farmers Branch sought then the FDIC removal from state Cravens, School District v. Johnson & to federal FSLIC under 12 U.S.C. Triland & (5th Cir.1989); 1730(k)(l) (repealed by FIRREA) and the Holdings Corp., & Co. v. Sunbelt Service 1819(b)(2)(B), FDIC under 12 U.S.C. after See also (5th Cir.1989). 884 F.2d a state court entered, had been FDIC, Jameson v. seeking without judgment relief from un- Cir.1991) (FIRREA juris extends FDIC’s 60, der Fed.R.Civ.P. and while the case was persons longer diction to include affil appropriate state on v. institutions); iated with insured case, court. In each the federal district Griffin, 935 F.2d 691, (5th Cir.1991) court remanded to concluding state (allowing jurisdiction federal even when that neither FIRREA nor 28 U.S.C. voluntarily FDIC has been dismissed as a 1441-51, general statutes, §§ — denied, cert. -, party), U.S. stage authorized removal at this of the 1163, (1992). S.Ct. 117 L.Ed.2d 410 Access proceedings. to federal courts in all actions to which it is Although it is not clear develop a whether allows FDIC to rely law, permit appellate removal statutes body on a national and uniform removal,5 the eliminating problems rely upon consistent with dissenters rule by Congress having rigor in that federal identified less district courts lack coexisting ous state standards federal to review final judgments with state court to See Smallwood v. support ones.4 position their that 1819 does not § Office of Thrift Supervision, (“We they rely on Dis- permit 925 F.2d at 898 read it. Specifically, 1819(b)(2)(D), 101-54(1), H.R.Rep. Cong., 3. 12 U.S.C. which relates to § sit- No. 101st 1st Sess. at state, federal, 297, opposed reprinted Cong. uations in which to in 1989 U.S.Code & Ad- receiver, appoint authorities the FDIC as which at min.News depository sys- involve tem, a state insurance require only interpretation and which type 5.We do not decide whether this of removal law, apply of state does not case. First, proper would be under 28 U.S.C. 1441. § us, pending While this matter was Sub- the FDIC could not remove the instant case (b)(2)(B) section was amended to add at the end dispute hinges under and, 1441. The on state § law following: thereof the "before the end of the 90- thus, jurisdic question there is no federal action, day period beginning on the date the Second, tion. it is uncertain whether the FDIC suit, against Corpora- is filed any 1441 to effectuate removal in § utilize par- tion or the is substituted as a case, just present one. not In FDIC v. Sum ty-” (5th Cir.1979), Corp., ner Financial 602 F.2d 670 predecessor we held that the statute to 12 U.S.C. Report explained 4. The House on FIRREA 1819(b)(2) complete jurisdictional a was problem having regula- with federal and state original jur scheme and both and removal tory systems simultaneously supervising thrift proper only isdiction over the FDIC was if the having greater pow- institutions: "In addition case fell within the ambit of 1819. Id. at 677- ers, many state-chartered thrifts found far less Elefant, 80. See also FDIC v. rigorous regulatory supervisory environ- clear, however, Cir.1986). entirely It is long ment at the state level. As as the ... Ticktin, good is still In v. Sumner law. FSLIC government picking responsible federal 82, 1626, L.Ed.2d 490 U.S. 109 S.Ct. thrift, up the tab for a failed state-chartered (1989), Supreme Court held that the statute great many there was no incentive for state FSLIC, granting jurisdiction over 12 U.S.C. legislatures deny sweeping demands for 1730(k)(l), pre did not was not exclusive and powers additional investment made the thrift clude the exercise of under other industry. tragic. Seventy per- The results were jurisdictional grants jurisdiction. The FSLIC expenditures during cent of all FSLIC 1988 went statutory prede very statute was similar to the pay problems by high-risk, created ill- statute, jurisdictional supervised, cessor to the FDIC state-chartered thrifts California Ticktin, therefore, question into the result and Texas. Those same two calls states absorbed 54 percent expenditures of FSLIC 1987.” Sumner. Meaning Plain of the Statute. A. Appeals v. Court trict Columbia 476,103 Feldman, S.Ct. 460 U.S. statutory requiring con As in (1983), and Hooker 75 L.Ed.2d struction, High has us Court instructed 413, 44 S.Ct. Fidelity Trust law plain language of the adhere to the (1923). Their reliance 149, L.Ed. 362 application of a statute will unless “literal the Rooker-Feldman misplaced. Under demonstrably odds produce a result “final cases, statute defines line of its drafters.” the intentions of Griffin “rendered as those judgments” state court Inc., Contractors, Oceanic state which court of a highest 3245, 3250, 73 L.Ed.2d 973 571, 102 S.Ct. 28 U.S.C. had.” could be decision recently re (1982). Supreme Court Texas 1257(a). judg- a “final” in Demarest v. is not this standard district court affirmed higher Two this definition. ment 28 U.S.C. Manspeaker, within involved — judiciary could hear the state courts within U.S. -, 111 Ry. v. Rail- Co. appeals. Market St. Demarest, L.Ed.2d 608 California, State road Commission said, this is do not believe “We Court applica where the one of those cases rare final (1945)(a judgment is L.Ed. 1171 produce a will tion of the statute as written (1) if it is an effective determination the inten ‘demonstrably at odds with result interlocutory not an litigation in that it is ” 111 at 604. its drafters.’ Id. S.Ct. tions of (2) it is when judgment and or intermediate face, that, language of agree on its the We or correction to no further review subject 1819(b)(2)(B) allows removal 12 U.S.C. § tribunal).6 state other this case posture in which procedural the to the broad directs The FDIC us the that to us.7 The statute states comes arguing that language of 1819 action, suit, may any such FDIC “remove case. in this removal statute authorizes to the proceeding from a state court reasoning, the statute because Under this district court” appropriate United States re appellate specifically prohibit does not plain (emphasis supplied). statute’s on the moval, Appellees, it. it authorizes in a Any language quite plain: is action hand, language is so that the insist other lan This may court be removed. state on this issue statute is silent broad that to limit removable actions guage does not to not able FDIC should and that the trial yet reached state those that have not a proceed stage state at this remove cases nor does it limit removable judgment, court issue, look we must ings. To resolve this to the federal to those that come actions meaning of FIR- plain language and to the (i.e., from state court specific courts from a authority of Con REA, the Constitutional court). trial, opposed appellate, to state jurisdic sort of gress grant this Furthermore, contrast between any reason to tion, there and whether is specific court” and the “a broad intend Congress could have not think court” district within “United States result. ed this language of 12 Furthermore, that the The FDIC contends modern of removal view 1821(d)(13)(B) right original its closely than to establishes akin it is more that appellate removed, once the case appellate proceedings. because subsection This remove commenced judg- it is treated as if it had any appealable “In the event of states: ment, v. Bee Machine See Freeman federal court. or receiv- Corporation as conservator 1146, 1148, 87 L.Ed. 63 rights avail- and remedies er shall have all denied, 1509, rehearing depository the Cor- ... and able to the insured Ry., (1943); v. Southern Saveli L.Ed. including re- corporate capacity, poration in its Cir.1937). (5th ap- The older F.2d proach rights.” all court and moval to Federal jurisdiction viewed removal removable, agree Although this case is we not did because the appeal as an argument. § 1821 accept this While we cannot See, e.g., Barrow v. court. in federal commence a suit remove makes it clear that Hunton, Under L.Ed. clearly judgment, it does not establish after removing understanding, this case the modern court of a state constitute the does not judgment federal court. Cir.1963); (9th Munsey v. Test the F.2d 783 suggests that strongly sentence same Laboratories, Inc., meaning urged worth intended drafters curiam). Cir.1955) (per In (6th the FDIC. Camp Development, Yancey Circuit, con- Eleventh Like the Cir.1989), case which was on 1819(b)'s prede- issue under sidered the district appeal, we allowed removal and statute, no reason “discern canwe cessor judgment. a default set court aside ‘action interpretation

to confine that have to actions a State court]’ [from Therefore, unless lacks Fed- judgment.” re Savers reached III of Article power under Assoc., 872 F.2d Savings Loan& eral juris- federal to confer Constitution Cir.1989). In In re Savers in cases upon district courts diction in state a financial institution sued debtor one, Congress could or unless such as this here, contract claiming as breach so it enacted intended to do when not have counter- the institution and fraud in re- FIRREA, court erred the district note. on the debtor’s recover claimed to court. manding this action post- after denial After trial, and hearing, new motions trial III Create B. Article Power to con- remittitur, appointed was the FSLIC in Federal Jurisdiction filed It then institution. servator District Courts. re- The district removal. notice of that “Con- it is black letter law While com- concluding that the case manded expand gress may not defendant and that in state court pleted es- beyond the bounds federal courts The Elev- effect, seeking appeal. was, in Constitution,” and vacat- Verlinden mandamus granted tablished Circuit enth of Nigeria, basis 461 U.S. on the Bank remand v. ed the B.V. Central of 1962, 1970, 1819(b)(2)(B). 491, 76 L.Ed.2d 480, 103 S.Ct. Congress to autho- (1983), power of 81 question Circuit framed The Eleventh appeal has been cases on rize of final has been a there after as “whether v. Hunt- Martin repeatedly affirmed. See court, but when state trial by the 349, Wheat.) 304, 4 (1 Lessee, U.S. 14 lapsed, a er’s yet appeal has period may autho- (1816) (“Congress ... from a L.Ed. 97 an ‘action be case ceased to ” judg- or after The court at rize removal either 965-66. court.’ 10, 18, Fuentes, “Had ment.”); not and stated: 92 U.S. it did v. concluded that Gaines removal, Davis, limit the Congress (1876); intended v. Tennessee L.Ed. 524 23 a pending before (1880). to suits of FSLIC power 257, 269, 648 25 L.Ed. 100 U.S. explicitly could it have state trial however, chosen has seldom Congress, 12 much, in ... as it did as stated must decide and we power,8 this exercise at 966. 632....” Id. enacting the by so done it has whether true, case, removal is removal statute. it is FDIC In the instant appellate from the state sought been Statute. appeal yet had Removal C. whereas Savers factor, The significant filed. History. 1. had not proceedings that state because arise Special considerations when removal exhausted yet been ef- Jurisdic- statute. jurisdictional a 1819 is Motor Murray v. Ford Accord

fected. an interpreted with must be statutes Cir.1985) tional 461, 463 770 Company, opponents history.9 The Neustadter, eye towards 324 curiam); v. Butner (per ... any prosecution such action ap- lawful in is on may remove a remove party to either judgment, for after final peal. case.”) transfer, appeal, by such authoriz- International Congress least one statute Romero v. at enacted Justice Frankfurter 354, 360, 79 during Recon- Operating 358 U.S. ing post-judgment removal Terminal (1959), 473-74, 1863, 468, ex 3 L.Ed.2d 368 Corpus ofAct S.Ct. Habeas era. See struction p 755, ("And 5, 81, it shall 757 Stat. ch. lained: Cases, adopting the moval 115 U.S. would us believe have (1885). The L.Ed. 319 Railroad thoughtlessly of FDIC’s view § Pacific “every relied on to hold that Court Osborn “arising juris- pushes under” improvidently case, nature, irrespective brought by of its expanded new world diction into a brave against federally corpora charted [sic] growth, with no histori- and uncontrollable arising is a suit under the tion ‘laws of the A approach. cal basis for this broadened ” Frankfurter, United States.’ Distribu history jurisdiction review of the tion Judicial Power Between United does not carve out this statute reveals that Courts, L.Q. States and State 13 Cornell arising jurisdiction under type a new (1928). Rather, FIRREA re- never before seen. given arising expansive reading version of the Pa turns us to an older “arising Railroad Court to under” existed until the ear- jurisdiction under cific Romero, was soon curtailed. Id. also See century. ly part at 379 n. 79 S.Ct. at 484 n. 50. U.S. States, the United Osborn v. Bank of example, interpret For 28 U.S.C. § Wheat.) 738, 822, (9 6 L.Ed. 204 U.S. narrowly ed more than the Constitution (1824), expounded on the Justice Marshall Verlinden, 494-95, permits. at jurisdiction: III limits of Article outer 103 S.Ct. at 1971-72. The judicial pow- question to which the “when statute, 1441, is also not 28 U.S.C. inter is extended the constitu- er of the Union preted broadly as it could be. See original ingredient an tion forms Sheets, Corp. Oil & Gas Shamrock cause, power it is 868, 872, U.S. S.Ct. 85 L.Ed. give jurisdiction courts of that the circuit (the (1941) “policy of the successive concep- “reflects a broad cause.” Osborn Congress regulating acts of jurisdiction, ‘arising under’ accord- tion of calling of the federal courts is one for the Congress may confer on the ing to which [removal]”); Willy strict construction of federal courts over case or Corp., 855 F.2d 1160 Cir. Coastal controversy applica- call for the 1988), remand, 915 F.2d 965 after Verlinden, tion of federal law.” — (5th Cir.1990), -, aff'd, if at 1970. Even S.Ct. 117 L.Ed.2d 280 law, decided are ones of state issues to be Collins, Unhappy History also Fed of jurisdic- permits III the exercise of Article Question Removal, 71 L.Rev. eral Iowa parties corpo- if the a federal tion one of (1986). 717 See, e.g., The ration. Bank United jurisdic It is clear that no federal Georgia, 22 States v. Planters’ Bank of present dispute tion exists over the under (9 Wheat.) 904, (1824). 6 L.Ed. 244 1331 or 1441 either 28 U.S.C. because § § Congress, actually did not governed by the issues are state law and jur- grant the lower federal courts removal ingredient law is a small of the federal question until dispute. isdiction over federal eases Gully v. First National statute, Meridian, 109, predecessor This to 28 1875.10 Bank at 1441, 96, (1936) (for given expansive an in- a to “arise 81 L.Ed. 70 suit law, “right immunity a terpretation in the Railroad Re- under” federal Pacific stated, [ajbstractly problem is the ordi- to the enactments which have derived from nary apply that Article. task of a court to the words of a according proper statute to their construction. “proper But construction" is not satisfied history interpretation judiciary If the they taking the words as if were self-con- legislation anything, teaches it teaches the considered, phrases. tained So the words do duty reject treating such statutes as a wood- yield meaning not statute. must [We en set of self-sufficient words.... words words we have to construe are statute, forget not a Constitu- not tion, that is a it] history. They express an enactment with a expounding. we are serial, part that is of a and a serial that must 2, Constitution, 137, 18 Stat. be related to Article III of 10. Act of March ch. legislation, judiciary the watershed of all and

519 See, e.g., Hulsey are lost. v. Tex- laws of the State by the Constitution created 168, (5th Cir.1991), element, as, 929 F.2d 170 and an and must be an cited therein. FIRREA confers cases one, plaintiffs cause of of the essential litigation weapon by making powerful such action”); Bd. v. Tax Construc Franchise usually untimely arguments 1, available to Trust, 463 U.S. tion Laborers Vacation the FDIC. But see Baumann v. Savers 2841, (1983). It is 420 77 L.Ed.2d S.Ct. 103 Assoc., Savings Federal & Loan 12 Congress enacted equally clear that Cir.1991) (11th (holding 1511 so that the FDIC precisely U.S.C. § FIRREA does not Resolution Trust allow jurisdiction enjoy question federal could to raise issues on which to that articulated Osborn similar cert, below), petition were not raised Cases. See Railroad Removal Pacific (U.S. 6, 1992). January filed, FDIC, 905 Drilling v. Bailey Co. Pernie Cir.1990); Franklin National F.2d Furthermore, 1819(b)(2)(C) 12 U.S.C. § Andersen, v. Litigation Securities appeal orders remand- allows the FDIC to (2d Cir.1976); George- FDIC F.2d ing state courts. Under removed actions to (10th Cir.), cert. de Howard, F.2d 591 statutes, general removal such orders 91 L.Ed. 623 nied, S.Ct. 1447(d). appealable. 28 U.S.C. are not (1946). addition, in any the FDIC can remove party, though case to which it is a even Thus, history of federal nothing in the can generally only remove. 28 ignore plain compels us defendants 1441(a). FDIC, 931 In Lazuka v. that it creates meaning find (11th Cir.1991), the Elev- F.2d jurisdic- type of more restricted held 1819 allows enth Circuit Similarly, a language its allows. than tion “well-pleaded to overcome com- ways look at broader rule, the plaint” rule. Under this basis procedural, the FDIC’s enhances statute appear on the face federal must re- powers particular post-judgment, complaint. Caterpillar Inc. v. finding nothing with our inconsistent veals 386, 392,107 Williams, 482 U.S. in this case. it authorizes removal Section 96 L.Ed.2d jurisdic- FDIC to FIR- allows the invoke Advantages in Procedural 2. Other appears in the com- regardless tion of what REA. that, found plaint. The Lazuka impor recently recognized an We FIRREA, “Congress very used enacting FDIC’s way increases tant every language to strong afford powers in Resolution Trust post-judgment within having a federal forum possibility of Corp. McCrory, Although III.” Id.11 limits of Article case, FIR- Cir.1992). we held that In that advantage, it post-judgment is not a this assert regulators to permitted federal REA importance Con- another indication of the first time on special defenses for their falling under getting cases gress placed on Federal Bank appeal. also Union into federal courts. scope of FIRREA Cir.1990) Minyard, 919 F.2d advan- Cumulatively, procedural these special defense for to (FDIC allowed raise tremendously Congress because, Corpo tages bestowed appeal as the time on first carry out court, ability to its the FDIC’s trial it increase was not ration responsibilities regulatory enforcement opportunity nor to the occasion had neither advantages allow Castle, FIRREA. These below); F.2d under it raise shoes of a trou- step Cir.1986) (FDIC the FDIC into allowed to stage at financial institution ap bled appeal because raise defenses on first for being penalized proceedings without under relevant of defenses clear plicability and to effec- timing of that assert substitution statute). Generally, arguments not institu- protect the aggressively tively and appellate an level action reaches until an ed Otero, party. FDIC v. becomes a possible parties Additionally, for it is even 1979). (1st Cir. F.2d 627 action once FDIC to remove an other than the finding subject and assets. Our dismissal for juris tion’s interests lack of matter 1819 allows removal this case is diction vacated and case remanded with proce- completely consistent with other judgment appel- instructions to enter for advantages gives dural the FDIC lees); Heckler, Ferguson v. underlying goal promoting

and with the (5th Cir.1985) (district uphold court’s federal, state, opposed regu- uniform ing of an AU’s determination under Social supervision lation and of thrift institutions. Security Act reversed and case remanded judgment with instructions to enter in fa Allowing Results of D. Procedural claimant); Jones, vor of the Thorne v. Appellate Removal. (5th Cir.1985) (district Appellees argue against finding jurisdic- judgment against court’s defendants for proce- tion under FIRREA because of the violating plaintiffs’ rights constitutional re consequences. argument goes dural Their versed and case remanded with instructions like this: If we allow removal after a final judgment defendants) to enter for the cert. judgment state court has been entered and denied, available, where Rule 60 relief is not (1986). L.Ed.2d 313 The district court’s origi- district court would have no federal role in these remand situations is no less Basically, nal to exercise. it mechanical and involves more active a First, would face two choices. it could judicial adopting role than does a state judgment in ap- review the state court an judgment sending pellate posture. We make no indication of to an court.12 propriety of such action because it is presented We have been with a necessary to force district courts into parade argued of horribles which it is will this role when the other role available holding. premoni follow from our These present complex them does not such consti- unnecessarily complicate tions the matter. jurisdictional tutional and issues. A simply case removed from state court option This second is for the district system comes into the federal in the same court to take the state as it finds system. condition in which it left the state it, prepare required ap- the record as Foods, Granny Goose Inc. v. Brotherhood peal, and forward the case Teamsters, Etc., 423, 435-36, of S.Ct. appellate court for review. We are not 1113, 1122-23, 39 L.Ed.2d 435 persuaded so-called “rubber- instance, appeal For if the notice of stamping” by district courts is so at odds adequate system, in the state court it jurisprudence pre- III with Article that it adequate should be deemed when it enters following plain language cludes courts, regardless the federal of whether statute or that could not have requirements the state technical for notice intended this result. Granny differ from the federal. courts, argue that district dissenters Goose, 435-36, 1122- 94 S.Ct. at original jurisdiction, in order to exercise (“Judicial economy promoted by pro “judge something” must in order for there viding proceedings had state court controversy a case or before them court, shall have force and effect in federal controversy under Article III. The case or pleadings so that filed not, however, requirement preclude does example, duplicated need not be in federal remanding courts from court.”). regular cases to district courts on a basis Finally, holding we do not intend prescribed with instructions to take a ac- tion, suggest in to that the re- specified such as enter for a this case See, Schultz, replace- party. e.g., Mulligan v. 848 moval statutes “effect a wholesale (district (5th Cir.1988) general removal statutes court’s ment” of the dispute right compromise controversy deprive parties 12. A to the case or to this of their relegate issue would be to allow removal when them to relief under and to expanded Fed.R.Civ.P. 60 relief is available. We are cer- tain, however, the FDIC removal Rule 60 when it Congress enacting power by did not intend FDIC removal statute. “(B) agree 1441-51. We Removal in U.S.C. found §§ 1819(b)(2)(B) re- invokes Except provided subparagraph as in appropriate United ferring to “the (D), Corporation may, without bond FIRREA’s lack of and that District Court” action, suit, security, any or remove or of removal the mechanics provisions for proceeding from a State court to the general sche- reliance on necessitates appropriate United States district court Indeed, recently held that we ma. 90-day period the end before timely filing re- FDIC must adhere action, beginning on the date the removal stat- general quirements of suit, proceeding against or is filed Loyd, utes. FDIC Corporation or the 1446(b) filing Cir.1992) (28 timely (Underlin- party.” as a substituted under applies to the FDIC requirement ing language) added to indicate new however, FIRREA, confers a FIRREA). 102-242, I, 161(d), (Pub.L. Title corpo- power to a federal specific removal 2236, 2286, 19, 1991) Stat. Dec. specific pow- extent that the ration. To the are incon- my colleagues in the statute think that this ers or mechanisms Some statutes, general removal significance. with the has little or no I sistent amendment general statutes. supersedes the FIRREA think it does. The fundamental conflict in Eleventh with the holding This is consistent relates to the issue of whether the which, FDIC, like in 1819(b)(2)(B) Lazuka provisions any- Circuit’s indicate in held that removal Loyd, decision our thing regarding Congress’ intention about general into the FIRREA does fit under being the status of the case removed. Ab- (con- 931 F.2d at removal scheme. language to this sent the new added Sec- provi- FIRREA removal cluding that “the Amendment, by the 1991 I am inclined tion should be at 12 U.S.C. 1819 sions located “general agree the dissent that the with rele- specific exceptions from the viewed trial/appel- language does not address the proce- removal provisions of vant being late status” of the case removed. dure, at 28 U.S.C. located §§ language of the 1991 With the new reaching a different conclusion 1447” but place, “plain Amendment concerning 30-day fil- when Loyd than argument majority holds meaning” begins ing period under U.S.C. § water, in the unusual circumstances even run). and the law Because the statutes language The new in this case. involved them conflict on the has evolved from periods indicates two of time when us, controls. issue period first may accomplished. The be filing date of an ac- begins time with the II. Sanctions tion, suit, in a state court district court’s deci- we reverse the Since (FDIC) party is a Corporation” which “the it is appeal, the instant sion to remand 90-days later. The ends defendant and for im- its award of sanctions clear that period of time second must also be reversed. proper removal begins the date accomplished as a Corporation is substituted Conclusions suit, action, proceeding in a state court remand- The decision of the district days ends 90 thereafter. court and assessing sanctions is ing this matter and language statutory REVERSED, recognize I that the its remand order VACAT- contain period does not defining REMANDED to the the second ED this matter is “regardless of the proceedings. language like express for further district court But being removed.” of the case status DeMOSS, Judge, specially Circuit period does defining first language concurring: thought that the clearly indicate the case status of subject of about matter on During pendency of this (and of the Cor- the status 1819(b)(2)(B) being removed appeal, 12 U.S.C. § therein) and party defendant poration as a as follows: amended to read respectfully dissent. Persuaded therefore language about the to use the failure (or inappro- the removal of this case was being removed that case of the status there- I affirm the priate improper, as a and would Corporation of the status period second in) of the of remand. in the definition order mind, be construed should, my properly in procedural history briefly I restate the omission; leading to being a conscious as Meyer- proceedings. posture and these removal is the conclusion whenever Adkinson sued and M. land Co. William Corporation in sought in a case which Savings Association Continental party, the status as a substituted has been fraud, usury, fraud in in Texas for court (and the being status removed inducement, misrepresentation. and party) is not materi- Corporation as a for fraud and counterclaimed Continental al. damages, the trial of contract. As breach reflects the period for removal The first $30,031,089.99 awarded Continental as for removal circumstances traditional $1,124,109.59. Meyerland Adkinson and seq. by et contemplated 28 U.S.C. § appealed. and Adkinson instead Corporation days gives the but their parties had submitted The second days to effect removal. of 30 when, September on briefs unique special and for removal is a period Board declared Home Loan Bank Federal part granted to the right appointed and insolvent Continental the FIR- purposes remedial the broad Savings Insurance Cor- Federal and Loan majori- in the Legislation as REA described removed as receiver. The FSLIC poration Likewise, the reasons stat- opinion. ty but the case was to federal district court clearly majority opinion, ed in the August April on 1989. On remanded special authority to establish has the Reform, 1989, the Financial Institutions right. best unique removal (FIRREA), Act Recovery and Enforcement Congress should have maybe all worlds 101-73, 103 was enacted Pub.L. Stat. its intentions thoroughly reflected more the FSLIC as Con- and the FDIC succeeded which would companion amendments with Claiming authority un- receiver. tinental’s by raised solve the uncertainties expressly 1819(b)(2)(B)),1 FIRREA, 12 der Obviously, don’t live we the dissent. cause. Our district removed the I concur all worlds. But best of imposed again $2500 remanded I am satisfied holding because majority The FDIC time- upon the FDIC. sanctions by the 1991 language added ly appealed.2 sufficiently express does Con- Amendment permitted gress’ intent that removal original and re expands the FIRREA out-of-the-ordinary circum- even the district courts jurisdiction moval this case. stances of cases which the FDIC to remove permitting for the matters ordinarily would have been POLITZ, Judge, whom Chief Carrollton-Farmers state courts. See HIGGINBOTHAM, GARWOOD, District v. Independent School Branch GARZA, WIENER, M. Circuit and EMILIO (5th Cravens, F.2d 571 Johnson & dissenting: Judges, join, Cir.1989); Holdings & Co. v. Sun Triland (5th F.2d 205 Cir. Corp., major disruption of belt Service accept I cannot 1989). accepts the FDIC con majority and the procedures practices allows the re also judicial sys- tention gross intrusion on the if the time case even moval of a state court majority opinion and by the tems fostered (1st F.2d 1237 Savings, apply jurisdictional provisions Bank Service 1. FIRREA's Cir.1990); Corp., re Trust In Resolution pending of its enactment. on the date cases (8th Cir.1989). Corp., Holdings Service & Co. v. Sunbelt Triland (5th Cir.1989); see also Kirkbride F.2d 205 ap- generally Although are 933 F.2d 729 remand Casualty orders v. Continental 1819(b)(2)(C) authorizes 232, Inc., Cir.1991); pealable, 12 U.S.C. Corp. Deposit Ins. Federal Cir.1991); the FDIC. v. First F.2d 815 Demars cases, is silent on the the statute run the has from relief procedural posture In appellate court. of the question a state critical is before action 60 relief is litigation. in which Fed.R.Civ.P. I am that the cases of the convinced urged by the available, disposition the statutory language providing for re- broad results: The one of two mandates action, suit, proceeding” or “any of moval reviewing in the federal district types and is limited to the of describes jurisdic- merits, on the exercises matters; language that general removable court; or the district tion over the state trial/appellate address the status. does not the decision of accept as its own must court peradventure persuaded beyond I am immediately the turn court and the state grant intended to fed- Congress that if had court appropriate federal case over to the totally power to courts the new eral district reject I alternatives appeals. both of decisions, it would have review court relief is if Rule 60 that would conclude authority great speci- that with articulated sought, FIRREA or not either unavailable historical cornerstone of federal ficity. An of requires removal nor neither authorizes grant of general to a is that the appellate court from a state a case does court. to federal district courts federal district final state power to review not include 1819(b)(2),pro- FIRREA, at 12 U.S.C. § only rea- judgments.4 It is therefore court part: pertinent in vides if intended expect sonable (A) authority as embraced to vest (D), subparagraph provided Except as authority have majority would law nature at common suits of a civil all preciseness with the same expressed been Corporation, in equity or grants. specific jurisdictional found other is a shall deemed any capacity, example, Congress promulgated has For of the United under the laws to arise judicial re- guidelines for express, succinct States. the Adminis- agency actions. view of See (B) Removal. Act, 5 U.S.C. 701- trative Procedure §§ (D), subparagraph provided Except as appeals of empowering the courts 706. In or may, without bond agency authority particular to review action, suit, pro- or security, remove required, as in orders, Congress has not appro- ceeding from a State court provision, that the FIRREA district priate United States district initially to the presented case be beginning on 90-day period of the the end instead, has, permitted expressly court but suit, action, proceeding is the date the appeals.5 of directly in the courts filing Corporation or the Cor- against filed of distinct boundaries Similarly, party.3 as a poration substituted procedures criminal state court review of insisted, majority now and the The FDIC by Congress. expressly detailed have been language statutory the broad holds need be One 2241-2254. See U.S.C. §§ action, suit, from “any power of United even the mindful that regardless of permits removal court” State final Supreme Court to review judicial the state within the case’s status de- legislatively has judgments been de- the breadth Despite system. 28 U.S.C. fined. categories § of removable scription of pursuant U.S.C. to 28 reviewed (D) Service order inapplicable to the Subparagraph 160(f) (National seq.); § U.S.C. et inquiry. present reviewed Board orders Relations Labor Fidelity Trust 4. Rooker 843(e)(2) and, appeals); U.S.C. courts 68 L.Ed. licensing decisions re- Treasury (Secretary U.S.C. appeals). See also 16 by courts of viewed appeals (granting courts of 5. 28 U.S.C. power (delineating § 8251 final orders of jurisdiction to review exclusive Co- Appeals District of for the Commission, States Court Federal Communications of the Federal review final orders lumbia to Secretary Agriculture, Trans- Secretary Commission) Commission, 28 U.S.C. Power Maritime portation, the Federal re- (Court decisions Commission): Trade of International Commerce and the Interstate Circuit). by the Federal viewed (Immigration and Naturalization 1105a 524 1441(a). provisions statutory lan- FIRREA contains 1819’s broad

That section the mechanics of removal. Without for excep- to create the sufficient guage is not proce- the general to the statutes resort majori- right granted the tional removal to the district dures for notice of immediately apparent when ty should thereto, court, opposition stay and for consequences of that one considers are non- proceedings of the state court must today’s holding we holding. Under worthy point At this it is existent. as courts to sit the district either direct Congress took underscoring that when the removed appellate courts over ordinary out of rule forbid- FDIC cases cases, trial courts to require our court orders, ding appellate review of remand it judgments and stamp” “rubber exception in 12 expressly detailed appellate courts them to federal forward contrast, 1819(b)(2)(C). By FIR- U.S.C. § option requires the The for review. first original waiver of the REA contains no jurisdic- to exercise district court juris- jurisdiction limitation of district court 28 tion, original jurisdiction. See not general other feder- diction or of 1441(a). language purported- The procedures. al rules or result is contained ly requiring this sug- majority The finds the second FDIC 1819, very but also only in section acceptable; do not. A district gestion I jurisdiction forges original statute that adopt forced to a state trial court 12 U.S.C. Compare limitation. exercising not be decision as its own would suit, action, pro- 1819(b)(2)(B)(“any a case or contro- original jurisdiction over court”) 28 U.S.C. ceeding from a State with suggestion that versy. reject I Con- brought in a 1441(a) (“any civil action consider, momentarily, even gress would court”). State limiting function on an imposing such a support prop- for the I no conceivable see Further, assuming an Article III court.7 FIRREA effects a wholesale osition that adequate the district court’s resolution of schema, of the usual federal replacement role, incongruities pro- inherent in this statutes, 28 U.S.C. including the removal posal even for we are forced extend further referring example, by subject juris- 1441-1451.6 For of our own to theorize on the §§ procedur- District “appropriate suggests United States The two diction. 1819(b)(2)(B)obviously today’s holding, one which Court,” al tracks for subsection requires appeal and one which 28 a notice of provisions invokes venue theory posit- See, Corp., jurisdiction.” has been e.g. Deposit tective v. Federal Ins. This Lazuka grants 1530, (11th Cir.1991) justify congressional (Congress of federal sub- ed to 1536 931 jurisdiction ject without concomitant respects matter "that the FDIC adhere in most intended justify grants legislation, but not to Deposit substantive procedure"); Federal judge power Norwood, without F.Supp. Corp. 1075 726 Ins. Legislative Wellington, & Pur- case. See Bickel (S.D.Tex.1989). Mills pose ludicial The Lincoln and the Process: (1957); Case, Wright, C. 71 Harv.L.Rev. Congress' power on fed- to confer supra, at 110-11. III of the United States eral courts under Article addition, for a claim to be "[i]n order to "cases” and "contro- Constitution is limited matter, justiciable it must as an III article Co. v. National Insurance versies.” In Mutual controversy ‘present and substantial a real S.Ct. Tidewater Transfer adjudication unequivocally calls for (1949), three Su- L.Ed. 1556 Tribe, supra, rights’ asserted.” L. view, rejected by preme Court Justices took the 497, 509, Ullman, (quoting Poe v. Justices, I of the Constitu- other that Article (1961) (Brennan, L.Ed.2d empowers confer on "constitu- tion J., "justicia- concurring judgment)). powers beyond those de- federal courts tional” concepts bility" of "moot- maxim is anchored theory has never been in Article III. fined This ness,” "standing,” "ripeness," and does not majority Court and it is sanctioned theory stamp” be- precisely address the “rubber Tribe, today. American Con- See L. not viable Cohen, e.g., Flast fore this court. (footnote Law, (1988) 187-88 stitutional omitted); Wright, (1968). None- L.Ed.2d Law of Federal Courts C. context, theless, just requires it an adversarial case-or-controversy requisite of Article III minimum, pow- require, validity, at a Reserving we also would seem comment its on something. judge "pro- distinguish theory popularly er to known as highest pending petition are court and alternatives Both of these does not.8 rules. rehearing other well-established before that or even there- conflict case has that once a provides after, One rubric application pending a writ is its course to federal court removed been Supreme In United States Court. each of Granny Goose law. governed by federal those instances we must now fabricate the & Foods, Brotherhood Teamsters Inc. v. of procedural appropriate rules out of whole Drivers, Auto Truck Are to decide the state cloth. we whether 1113, 1125, 39 L.Ed.2d important court consider the case would Granny Goose majority embraces enough grant discretionary review? obliges the federal Another rule Foods. appellate apply Should we our own rules case “in its current accept the appeal mandatory? and consider the in state though everything done posture ‘as grant rehearing? the Should we What federal in fact done the court had been apply reviewing are the standard we ” Corp. American court.’ Nissho-Iwai rehearing; should we seek to act as we (5th Cir.1988) Kline, 845 F.2d court would act or should fathom the state Ry., v. Southern Saveli (quoting independently analyze problem? the we Cir.1937) discussing 377, 379 majority’s analysis, perhaps Extending the Foods). is al Granny Goose If a case adoption mandate the we should and is subse appeal in state court ready on appellate state court’s decision as our own court, a federal district quently removed to proceed the case to decision and then allow ignore the federal must either we from this court to on a writ of certiorari in order to appeal requirements notice of Supreme Court. Or even the United States or we posture, in its state accept the case supreme court alarming, suppose the by requiring more posture ignore the state must today’s granted a of certiorari appeal. of With of the state has writ federal notice congressional leave any appellate at holding, without intermediate state to an appeal simply jurisdictional notice of the FIRREA removal. Does the time of the legal leger By a deft brush of disappears. Supreme require automatically vests majority demain certiorari? Un- hear the case on Court to jurisdiction over a state appellate federal Granny analysis majority’s of der has, somehow, passed court case which apparently must Foods that answer Goose precincts powerless dis through the mind. questions come to “yes.” be Other Appellate jurisdiction judge. trict court I entertain no doubt whatever clashes example of the attendant just one language simple broad If, procedures. federal state and between impose 1819(b)(2)(B) intended to was not action, suit, means proceeding” or “any upon the federal procedures those bizarre stage in the litigation any matter appellate. trial or judiciary, either removed while process, then a case not dizzying circumstances would These pending certiorari a writ of scheme, how- procedural plague our federal or, more star highest court even state’s ever, the district court if after disposition by the state’s tlingly, after appeals the case can so that federal court proposed procedural track that this court 8. One interpreta- point off in adopt proceed where it left to effectuate the FDIC’s from could ap- require notice of a federal tion would peal. court. suggests: propos- proffers an alternative The FDIC also appeal perfected approach, al, an Eleventh Cir- procedure Under followed perfection of an Mortg. Corp., court results in state appeal Sav. v. American cuit in Jackson Because a circuit court. in the federal Cir.1991). the Jack- Under 924 F.2d 195 already appeal in state has been filed notice of file a Rule 59 procedure, the FDIC must son removal, is, upon on file court and modify refuses to district court If the motion. would new notice district federal vacate, or- the state court then court. The filed in the federal need to be judgment or district court’s becomes the der given appeal would be court notice of follow the appeal would A notice order. if it were a notice same effect as 59 mo- disposition the Rule district court’s The federal district in federal court. filed tion. only record to the transmit court need 60(b) grant were asked Rule relief. In procedural practic- established federal setting long-established es. protocols prior would not be shredded. accept I cannot the contention that con- decisions we have allowed the removal of a gressional policy justifies behind FIRREA subsequent case a state court default power remarkable removal which to- 60(b) judgment where Rule relief was still day’s majority grants Indeed, the FDIC. Deposit Corp. available. Federal Ins. guidance provided by scant FIRREA’s Yancey Camp Development 889 F.2d legislative history supports my conclusion (5th Cir.1989), prior is the “any” court,” that the words and “State allowing removal after the state interpreted when in the context of FIRREA jurisdiction. court has been vested with In procedural statutes, do not Yancey we held that the district court im- every mean every procedural matter at properly refused set aside a state de- stage litigation. When FIRREA’s re- judgment. fault We did not discuss the provision moval was first submitted in a question but noted that a “state Representatives House of amendment it judgment in a properly ease removed vesting was described as in the to federal court—like the one before us— “authority to remove certain State can be vacated under Federal Rule of Civil court proceedings to Federal court.” 60(b).” Procedure 889 F.2d at 648. H.R.Rep. 101-54(1), Cong. No. 101st 1st Murray In v. Ford Motor 770 F.2d Sess., reprinted Cong. in 1989 U.S.Code & (5th Cir.1985), removal was effected (discussing Admin.News 124-25 H.R. timely while a motion to set aside a default (Version Cong., 101st 1st Sess. judgment pending in the state trial May 1989)) added). (emphasis Certain court. The state court had not received the proceedings, not proceed- all state court removal notice and had entered a default ings. judgment after the removing party failed 1819(b)(2) I would hold that 12 U.S.C. § appear in court. Pursuant to Rule permit does not the FDIC to remove a state 60(b)(1) judgment we allowed the state if, appellate proceeding at the time of Similarly, be set aside. Beighley v. Fed- removal, relief is not available under Rule Deposit Corp., eral Ins. 868 F.2d 776 Procedure, Federal Rules of Civil Cir.1989), motions to vacate the respectfully and therefore DISSENT. pending a new trial were still state trial court when the suit was re-

moved.

In Development, Lee, Northshore Inc. v. (5th Cir.1988),

835 F.2d 580 interpreted we 1730(k)(1) (repealed) permit BRAMBLETT, Patsy Richard H. and J. entry removal after of a state trial court Petitioners-Appellants, award; damages seeking FSLIC was. 60(b) Rule permitted relief. We have also COMMISSIONER OF INTERNAL a district court on removal to set aside a REVENUE, Respondent judgment against default a Jones Act de -Appellee. Azzopardi fendant. Drilling Ocean & No. 91-4145. Exploration Co., 742 F.2d 890 Cir. 1984). The Ninth permitted Circuit has Appeals, United States Court of district court on set aside a Circuit. Fifth judgment against default a diverse defen May dant on a state law claim. Butner v. Neus Rehearing Rehearing En Banc tadter, (9th Cir.1963). 324 F.2d 783 July Denied

Munsey Laboratories, Inc., v. Testworth (6th Cir.1955), 227 F.2d 902 the Sixth Cir

cuit did likewise. Removal in these cases require

did not disruption or result in a

Case Details

Case Name: Federal Deposit Insurance v. Meyerland Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 20, 1992

Citation: 960 F.2d 512

Docket Number: 89-6118

Court Abbreviation: 5th Cir.