780 F.3d 1256

9th Cir.

2015

MTB ENTERPRISES, INC., a Utah corporation; Michael T. Bilanzich, an individual; Hairware USA, Inc., a Utah corporation, Plaintiffs-Appellants, v. ADC VENTURE 2011–2, LLC, a Delaware LLC, Defendant-Appellee.

No. 13-35468

United States Court of Appeals, Ninth Circuit

March 23, 2015

780 F.3d 1256

the contrary, from this record we cannot say whether he was convicted of the crime of intentional aggravated assault, the crime of knowing aggravated assault, or the crime of reckless aggravated assault. Additionally, based on the charging documents, these mental states may have been treated as alternative means rather than alternative elements in Marcia-Acosta‘s case, in which case Marcia-Acosta was convicted of none of these three alternative crimes, but instead was convicted of the single crime of intentional, knowing or reckless aggravated assault.¹¹ We can say for sure only that the Shepard documents do not prove that Marcia-Acosta was convicted of the crime of intentional (or knowing) aggravated assault, and so the modified categorical approach is not satisfied.

In sum, the district court misapplied the modified categorical approach in determining that Marcia-Acosta‘s prior conviction was for a crime of violence, and therefore erred in including the 16-level enhancement in its calculation of the Guidelines sentence.

IV.

Although advisory after United States v. Booker, 543 U.S. 220 (2005), the Guidelines remain “the starting point and the initial benchmark” of any sentencing determination. Gall v. United States, 552 U.S. 38, 49 (2007). “[S]entencing proceedings are to begin by determining the applicable Guidelines range. The range must be calculated correctly.” United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir.2011) (per curiam). We thus vacate Marcia-Acosta‘s sentence and remand for resentencing consistent with this opinion. Accordingly, we need not address Marcia-Acosta‘s arguments that his sentence was otherwise procedurally erroneous and substantively unreasonable.

VACATED AND REMANDED FOR RESENTENCING.

Geoffrey J. McConnell and Chad M. Nicholson, Meuleman Mollerup LLP, Boise, ID; and Sean N. Egan, Salt Lake City, UT, for Plaintiff-Appellant.

Submitted March 23, 2015.*

Filed March 23, 2015.

Larry E. Prince and A. Dean Bennett, Holland & Hart LLP, Boise, ID, for Defendant-Appellee.

Before: M. MARGARET MCKEOWN, RICHARD C. TALLMAN, and JOHN B. OWENS, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

INTRODUCTION

This case is about a bank loan gone awry—and where parties can sue to recoup their losses when a financial institution fails. Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA” or “the Act“), claimants in cases involving failed institutions must file suit either in the district in “which the depository institution‘s principal place of business is located or the United States District Court for the District of Columbia (and such court shall have jurisdiction to hear such claim).” 12 U.S.C. § 1821(d)(6)(A)(ii). The question of first impression in our circuit is whether this procedural provision is jurisdictional or simply a venue requirement subject to waiver. We conclude that this section sets out the subject-matter jurisdiction of the court.

BACKGROUND

In 2007, as the real estate boom edged toward its pre-recession peak, MTB Enterprises, Inc., entered into a financing arrangement in which ANB Financial agreed to provide it with a $17 million loan and line of credit to develop a real estate parcel called Sundance Ranch in Canyon County, Idaho. A year later, ANB balked on honoring the final $6 million in payouts, and thereafter failed as a financial institution. MTB‘s construction project was left to languish. In the aftermath, the Federal Deposit Insurance Corporation (“FDIC“) was appointed as receiver and transferred the construction loan, along with ANB‘s other assets and certain liabilities, to a new entity—ADC Venture, 2011–2, LLC.

The bank loan inspired an alphabet soup of claims and lawsuits. In 2008, MTB filed an administrative claim with the FDIC and a lawsuit in the United States District Court for the District of Idaho, which named the FDIC and ANB as codefendants. The FDIC rejected the administrative claim. The civil case was transferred to the Western District of Arkansas, where ANB Financial was headquartered. Soon after, MTB voluntarily dismissed its lawsuit without prejudice.

In 2012, MTB filed a new suit against ADC Venture without the FDIC as a defendant in the District of Idaho. MTB alleged that ADC Venture assumed the obligations of its predecessor and therefore was liable for breach of contract and resulting damages from the failed construction venture. The district court dismissed MTB‘s claims, finding that ADC Venture did not assume liability stemming from the 2007 loan.

ANALYSIS

ADC Venture now argues, for the first time on appeal, that we lack subject-matter jurisdiction over this lawsuit under FIRREA. We consider this issue because defects in subject-matter jurisdiction “may be raised at any time.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

In the wake of “the savings and loan crisis of the 1980s, Congress passed FIRREA to give the FDIC power to take all actions necessary to resolve the problems posed by a financial institution in default.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1211 (9th Cir.2012) (internal quotation marks omitted). The Act “provides detailed procedures to ... ensure that the assets of a failed institution are distributed fairly and promptly among those with valid claims against the institution, and to expeditiously wind up the affairs of failed banks.” Id. (quoting McCarthy v. FDIC, 348 F.3d 1075, 1079 (9th Cir.2003)). Jilted bank borrowers—or “claimants,” in the parlance of the statute—must, among other things, exhaust administrative remedies and comply with FIRREA‘s directives on when and where to file suit.

Under FIRREA, a claimant must sue in the district court “within which the [failed bank‘s] principal place of business is located or the United States District Court for the District of Columbia....” 12 U.S.C. § 1821(d)(6)(A)(ii). The statute goes on to state, parenthetically, “(and such court shall have jurisdiction to hear such claim).” Id. At issue is whether that rule is jurisdictional.

In recent years, the Supreme Court has refined its approach to subject-matter jurisdiction and, in its words, sought “to bring some discipline to the use of th[e] term” jurisdictional. Henderson, 562 U.S. at 435. A jurisdictional rule is one that “governs a court‘s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Id. In the case of a federal statute, a provision is jurisdictional if it contains a “clear” indication that Congress wanted the rule to be “jurisdictional.” Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)). The Court noted that “Congress, of course, need not use magic words in order to speak clearly on this point. Context, including this Court‘s interpretation of similar provisions in many years past, is relevant.” Id. (internal quotation marks omitted).

In this case, Congress in fact invoked the “magic words” in two provisions, leaving little doubt that FIRREA‘s strictures are jurisdictional. Section 1821(d)(13)(D), denominated as “Limitation on judicial review,” provides that “[e]xcept as otherwise provided in this subsection, no court shall have jurisdiction over ... any claim relating to any act or omission of ... the [FDIC] as receiver.” 12 U.S.C. § 1821(d)(13)(D). This jurisdiction-stripping provision “applies to § 1821(d) as a whole“—the subsection that also encompasses the venue provision. In re Lewis, 398 F.3d 735, 743 (6th Cir.2005). Section 1821(d)(6)(A) contains its own reference to jurisdiction and provides that when claimants file suit in either of the two prescribed district courts, “such court shall have jurisdiction to hear such claim.” 12 U.S.C. § 1821(d)(6)(A)(ii). Taken together, these provisions underscore the jurisdictional nature of § 1821(d)(6)(A).

Not surprisingly, in the face of this statutory scheme, the First Circuit and an array of district courts have reached the same conclusion. See Lloyd v. FDIC, 22 F.3d 335, 337 (1st Cir.1994); see, e.g., Friederichs v. Gorz, 624 F.Supp.2d 1058, 1061-62 (D.Minn.2009) (citing cases) (“While ostensibly a venue provision, Section 1821(d)(6)(A) has been interpreted as jurisdictional, since FIRREA divests courts of jurisdiction over all claims not brought in accordance with its strictures.“). Likewise, we and other courts have interpreted other provisions within the same statutory subsection as jurisdictional. See, e.g., Rundgren v. Wash. Mut. Bank, 760 F.3d 1056, 1060-61 (9th Cir.2014) (interpreting administrative exhaustion requirements in § 1821(d)(13)(D) as jurisdictional); Miller v. FDIC, 738 F.3d 836, 843-45 (7th Cir.2013) (interpreting 60-day statute of limitations in § 1821(d)(6)(B) as jurisdictional).

We join the chorus and hold that the venue provision in § 1821(d)(6)(A) is a jurisdictional limitation on federal court review—a conclusion that MTB acknowledges is correct.¹ Accordingly, Congress has vested two federal district courts with jurisdiction over this lawsuit: the United States District Court for the Western District of Arkansas, where the failed bank‘s principal place of business is located, and the United States District Court for the District of Columbia. MTB, however, filed this complaint in the United States District Court for the District of Idaho.² Because that court lacked subject-matter jurisdiction from the start, this case must be dismissed.³

DISMISSED.

Notes

In supplemental briefing, MTB candidly wrote “that the law of this Circuit and elsewhere appears to indicate that this provision is a jurisdictional limitation on Federal Court review.” MTB also confirmed that ANB Financial‘s principal place of business is Benton County, Arkansas.

MTB suggests that it is excused from complying with § 1821(d)(6)(A)(ii) because it already did so in its initial 2008 lawsuit, which was transferred to the Western District of Arkansas. However, nothing in FIRREA suggests that § 1821(d)(6)(A)(ii) applies only the first time around. A claimant always must comply with § 1821(d)(6)(A)(ii) when it brings a federal suit subject to FIRREA.

In light of our holding, we need not consider whether FIRREA‘s administrative exhaustion requirement and 60-day statute of limitations pose additional jurisdictional barriers to MTB‘s action. See § 1821(d)(13)(D)(ii), (d)(6)(B).

Of course, if these three mental states really are alternative means rather than alternative elements—and we assume to the contrary for purposes of our analysis in this case—then this statute of conviction would be indivisible, and the modified categorical approach would not apply at all. See .

The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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