995 F.2d 238 | D.C. Cir. | 1993
Lead Opinion
Opinion for the court filed Per Curiam.
Dissenting opinion filed by Circuit Judge WALD.
The Federal Deposit Insurance Corporation (FDIC), acting as a liquidator with the powers of a receiver, see 12 U.S.C. § 1823(d)(3)(A), is in the process of selling the Dr. Pepper Headquarters Building in Dallas, Texas. The National Trust for Historic Preservation in the United States, the Historic Preservation League, Inc., and the Historic Preservation League of Dallas (collectively, the National Trust), sued to enjoin the transaction on the ground that the FDIC’s contemplated sale would violate the
The district court issued a temporary restraining order barring the sale, see National Trust for Historic Preservation v. FDIC, No. 93-0904, 1993 WL 328134 (D.D.C. May 7, 1993); a week later, the court (acting through a different district judge) denied the National Trust’s motion for a preliminary injunction and dismissed the action for lack of jurisdiction, see id., 1993 WL 211773 (D.D.C. May 14, 1993). In dismissing the action, the district court relied exclusively on 12 U.S.C. § 1821(j). We agree that § 1821(j) bars the National Trust’s suit for injunctive relief; accordingly, we deny the National Trust’s motion for a stay pending appeal, and affirm the dismissal.
Section 1821(j) states:
Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.
Here, the powers and functions the FDIC is exercising are, by statute, deemed to be those of a receiver. See 12 U.S.C. § 1823(d)(3)(A). An injunction against the planned sale would surely “restrain or affect” the FDIC’s exercise of those powers or functions. We reject the National Trust’s argument that § 1821(j) applies only to claims that are themselves subject to the administrative claims procedures set out in 12 U.S.C. § 1821(d). Section 1821(j) is not so limited.
Nothing in the text of § 1821(j) limits its application to claims brought by creditors or others who have recourse to the administrative claims regime of 12 U.S.C. § 1821(d). Cf. 28 U.S.C. § 1341 (explicitly limiting ban on federal injunctions against assessment of state taxes to cases in which there is a “plain, speedy and efficient remedy” in state court). The exclusivity of the FDIC’s administrative claims provisions stems from another provision located, as one might expect for an exclusivity-of-remedies provision, directly after the claims procedures prescribed in § 1821(d). That provision, set out in § 1821(d)(13)(D) and entitled “Limitation on Judicial Review,” states:
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or (ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.
It would be plausible, though we need not decide the question here, to read § 1821(d)(13)(D)(ii)’s ouster of jurisdiction as limited to suits otherwise governed by the administrative claims regime set out in § 1821(d). See, e.g., Rosa v. Resolution Trust Corp., 938 F.2d 383, 395 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991). It would not be plausible, in light of § 1821(d)(13)(D), however, to read § 1821(j) as a bar only against circumvention of the statutory administrative claims procedures. Such a reading would make the latter provision largely redundant and would overlook Congress’s casting of § 1821(j)’s directive in terms, not of precluding claims, but of shielding the FDIC’s exercise of its “powers” and “functions.”
The National Trust also argues that § 1821(j), which applies to the FDIC when acting “as a conservator or a receiver,” is simply inapplicable because the FDIC is acting in its corporate capacity. The argument is precluded by 12 U.S.C. § 1823(d)(3)(A), which provides: “With respect to any asset acquired or liability assumed pursuant to this section, the Corporation shall have all of the rights, powers, privileges, and authorities of the Corporation as receiver under section[ ] 1821 ... of this title.” The FDIC acquired the Dr. Pepper Building pursuant to its powers under § 1823; and the FDIC’s immunity from judicial “restraint” is among its “rights, powers, privileges, and authorities” under § 1821.
We do not suggest that § 1821(j) precludes courts from granting injunctive relief against the FDIC whenever and however it purports to act as a receiver. By its terms, § 1821(j) shields only “the exercise of powers or junctions ” Congress gave to the FDIC; the provision does not bar injunctive relief when the FDIC has acted or proposes to act beyond, or contrary to, its statutorily prescribed, constitutionally permitted, powers or functions. See Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 707 (1st Cir.1992); Rosa, 938 F.2d at 399; see also Coit Independence Joint Venture v. Federal Savings & Loan Ins. Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989). In liquidating assets it has obtained pursuant to 12 U.S.C. § 1823, however, the FDIC is acting squarely within its statutory “powers and functions,” and surely not in conflict with any constitutional norm. We do not think it possible, in light of the strong language of § 1821(j), to interpret the FDIC’s “powers” and “authorities” to include the limitation that those powers be subject to — and hence enjoinable for non-compliance with — any and all other federal laws. While Congress has included such provisos in some statutes immunizing agency action from outside second-guessing, see, e.g., 5 U.S.C. § 7106(a)(2) (management rights immunized from arbitral review under Federal Labor Relations Act only when exercised “in accordance with applicable laws”), we see no such limitation in § 18210*)..
In disposing of the assets of a bank, the FDIC is performing a routine “receivership” function that § 18210) unequivocally removes from judicial restraint. Deciding only the clear case before us, we do not reach further to consider whether § 18210) covers every other case a legal mind could conjure. Cf. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (recognizing exception to Tax Anti-Injunction Act, 26 U.S.C. § 7421, where tax collector lacks “good faith” claim to tax sought to be collected). The Dr. Pep
The prohibition against restraining the FDIC, with its unambiguous “No court,” applies as much to the courts of appeals as to the district courts. Having determined that § 1821(j) bars the National Trust’s suit to enjoin the sale of the Dr. Pepper Building,
. We recognize that in South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), the Supreme Court read into the encompassing language of the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a), an exception allowing states to invoke the Court's original jurisdiction to test the constitutionality of a provision of the Tax Equity and Fiscal Responsibility Act of 1982. The Court rested its decision on the "Act's purpose and the circumstances of its enactment,” which indicated that "Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy.” 465 U.S. at 378, 104 S.Ct. at 1114. In addition to its unique context, the decision can be fully comprehended only in light of Supreme Court doctrine that otherwise insulates the tax collector against suits that would deflect the collector’s energies from the collection of taxes. See, e.g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
The South Carolina v. Regan decision does not stand for the proposition that whenever a statute bars injunctive relief, the courts are to ignore the statutory restriction if the plaintiff cannot obtain adequate judicial relief by some other method. Injunctions generally issue when the alternative of a remedy at law is inadequate: preliminary injunctions and stays issue in order to prevent irreparable harm. To hold that the lack of an adequate alternative remedy renders § 1821(j)’s bar against restraining orders inoperative would therefore be tantamount to rendering the provision entirely ineffective.
. In Rosa v. Resolution Trust Corp., 938 F.2d 383, 395 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991), which stated that § 1821(j) does not apply to the Resolution Trust Corporation (RTC) in its corporate capacity, RTC invoked neither § 1823(d)(3)(A) nor any comparable provision equating corporate action, in the particular setting, to that of a receiver.
. This result is hardly so untoward that one might doubt whether the statute reaches so far. Cf. South Carolina v. Regan, 465 U.S. at 398-402, 104 S.Ct. at 1124-1127 (O’Connor, J., concurring in the judgment).
. We have considered, in reaching this judgment, the ample written submissions of the parties on the motion to stay before this court and the full presentations before the district court on the motions for a temporary restraining order and a preliminary injunction.
Dissenting Opinion
dissenting:
Even if the majority should ultimately be proven right that 12 U.S.C. § 1821(j) deprives this court of jurisdiction to enjoin the sale and demolition of this historic building that has come under the FDIC’s supervision, I believe it is singularly inappropriate to decide a first-time-in-the-circuit issue of such momentous consequences — potentially immunizing an agency from court enforcement of the entire U.S. Code — without the benefit of full briefing and oral argument. Accordingly, I dissent from the denial of the stay, which removes any federal law obstacles to the demolition of the Dr. Pepper Headquarters Building, considered one of the finest examples of Art Modeme architecture in Texas and already determined to be eligible for listing in the National Register of Historic Places.
I do not think the question of a court’s jurisdiction to entertain any action against the FDIC, no matter what statute it is violating or in what statutorily authorized capacity it is acting, is as easily resolved as the majority’s opinion suggests. While § 1821(j)’s language is unqualified in its breath-taking pronouncement that “no court may take any action,” that bar must be read in the context of the statutory scheme as a whole. In South Carolina v. Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984), for example, the Court limited the scope of equally expansive language in the Anti-Injunction Act, 26 U.S.C. § 7421(a),
The majority, however, disposes of this argument — and of the teachings of Regan— in a footnote explaining that this recent and seemingly applicable, if not controlling, Supreme Court precedent “can be fully comprehended only in light of Supreme Court doctrine” aimed at insulating the tax collector from suit. Majority opinion (“Maj. op.”) at
Indeed, in construing the scope of § 1821(j) itself, our sister circuits, like the Regan Court, have taken pains to consider the availability of an alternative administrative remedy. The First Circuit, for example, stated:
Congress did not leave individuals having claims against the institution without a remedy, however. FIRREA [Financial Institutions Reform and Recovery Enforcement Act] contains an elaborate administrative system by which the FDIC may adjudicate claims against the insured institution.
Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 705 (1st Cir.1992) (citing 12 U.S.C.A § 1821(d)(3)(h) (West 1989 & Supp.1992)). While the Telematics court went on to conclude that the district court did, in fact, lack jurisdiction, its decision was based in part on “the elaborate structure created by FIRREA, and the evident intent of Congress that the structure should be permitted to stand with minimal court interference.” Id.; see also United Liberty Life Insur. Co. v. Ryan, 985 F.2d 1320, 1329 (6th Cir.1992) (quoting Telematics); In re Landmark Land Co. of Oklahoma, Inc., 973 F.2d 283, 289 (4th Cir.1992) (“In FIRREA, Congress established a comprehensive statutory scheme within which the RTC could exercise its broad powers to reorganize and collect assets for the benefit of depositors (and taxpayers).”).
Again rejecting the approach counselled by the Regan Court, which interpreted the Anti-Injunction Act with regard to “indicia of
There are other reasons counselling a more in-depth inquiry than this stay motion has permitted. First, the majority’s conclusion that, tucked away in the middle of FIR-REA’s detailed discussion of the FDIC’s responsibilities in the valuation and distribution of assets and the conduct of liquidation proceedings, Congress bestowed upon the FDIC sweeping immunity from court intervention to enforce the entire body of federal regulatory law, presumably including criminal as well as civil prohibitions, “ ‘compel[s] an odd result,’ ” such as to take us out of the plain meaning rule. See Public Citizen v. Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) (quoting Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989)). Moreover, the Supreme Court has not generally limited its inquiry to a literal and unqualified reliance on the plain language of statutes limiting judicial review of administrative action. See, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (giving narrowing construction to broadly worded statutory bar of judicial review of amnesty applications under the Immigration Reform and Control Act of 1986); Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) (concluding that a provision barring judicial review of “the decision of the [Veterans’ Administration] Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans,” 38 U.S.C. § 211(a), did not preclude judicial review of a claim that the VA’s denial of certain benefits to recovering alcoholics violated § 504 of the Rehabilitation Act of 1973). A careful examination of the circumstances surrounding the adoption of FIRREA might indeed yield “‘clear and convincing evidence,’ ” Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1512, 18 L.Ed.2d 681 (1967) (internal citations omitted), sufficient to overcome “the strong presumption that Congress intends judicial review of administrative action,” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986), but our hurried consideration of this stay motion precluded any such examination.
Despite the majority’s reassurance that it is “deciding only the clear case before us,” Maj. op. at 340-41, that cannot be so. The implications of its basic approach and its holding cannot be so easily cabined. It has declined to inquire into any indicia of congressional intent that might limit the sweep of § 1821(j)’s broad prohibition, and it has declined to interpret the statute to make the FDIC’s exercise of its functions generally
I do not mean to suggest that appellants do not face significant hurdles in their argument for jurisdiction. In Rosa, for example, the Third Circuit held that the district court lacked jurisdiction over a request for an injunction prohibiting the RTC, in its role as conservator, from terminating a pension plan in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), or requiring it to make payments to the plan’s trustees. Read broadly, Rosa could be taken to preclude jurisdiction over injunctions alleging violations of federal laws not directly related to the resolution of creditors’ claims under FIRREA. A tighter reading of Rosa, however, reveals certain distinctions. First, the Rosa court expressly reserved ruling on possible exceptions to § 1821(j), such as those based on the absence of an alternative remedy, Rosa, 938 F.2d at 400, an argument not put forward there but squarely presented here. Second, the Rosa court expressly concluded that the anti-injunction provision did not bar claims against the RTC in its corporate capacity. Id. at 393. Briefing and argument could shed light on the proper reading of Rosa and the right resolution of these questions.
This action was brought not by a disappointed claimant, but by, among others, the National Trust for Historic Preservation in the United States, the primary congressionally-authorized protector of the nation’s significant historical properties. Before the preliminary injunction was denied in a conclusory one-paragraph order, a different district court had already concluded that the National Trust had “established absolute irreparable harm” and had shown that it “m[ightj well prevail” on the merits, and that a temporary restraint would not cause serious harm to the appellee and would be in the public interest. National Trust for Historic Preservation v. FDIC, No. 93-0904-HHG, 1993 WL 328134 (D.D.C. May 7, 1993), slip op. at 7. Given the high stakes here, both in this and in future cases, I would, at a minimum, follow the lead of our sister circuits and allow this question to be decided in a more comprehensive, albeit expedited, fashion with regular briefing and argument, instead of making binding circuit precedent in barely over a week on an unargued stay motion.
. That Act provides, in relevant part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. § 4721(a).
. I agree with the majority, see Maj. op. at 239 n. 1, that Regan does not stand for the proposition that an anti-injunction provision can never be applied in the absence of an alternative remedy, whether judicial or administrative. I do read Regan to suggest that an anti-injunction provision should not be interpreted in the absence of a considered inquiry — or indeed, any inquiry — into the reach Congress intended to give the provision. If the inquiry reveals no congressional concern for the availability of alternative remedies, then clearly the court should not impose such a limitation. My reluctance is to reach that conclusion without adequate consideration of "the circumstances of [the provision's] enactment.” See Regan, 465 U.S. at 378, 104 S.Ct. at 1114.
. Both the FDIC and the RTC are subject to § 1821(j), and case law applying that provision to one agency is applicable to the other. See, e.g., In re Colonial Realty, 980 F.2d 125, 136 (2d Cir.1992) (applying RTC precedent in case involving FDIC).
. Nor does the majority negate the broad implications of its ruling by its passing reference to Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). Enochs held that a taxpayer could seek to enjoin the collection of a tax only where the government had no chance, under any circumstances, of prevailing on its claim, such that its action would be an "exaction” in "the guise of a tax.” Id. (internal citation omitted). So limited a remedy provides no relief in situations like this one, where two different district court judges have determined that the party seeking an injunction has made a strong showing on the merits. National Trust for Historic Preservation v. FDIC, No. 93-0904-HHG, 1993 WL 328134 (D.D.C. May 7, 1993), slip op. at 7 (Trust had "established absolute irreparable harm” and had shown that it "m[ight] well prevail” on the merits); id., 1993 WL 211773 (D.D.C. May 14, 1993) (agreeing that the Trust had made a "strong showing on the merits”).