USCA1 Opinion

September 19, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1509
SUNSHINE DEVELOPMENT, INC., ET AL.,
Plaintiffs, Appellees,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
AS LIQUIDATING AGENT FOR FIRST SERVICE BANK FOR SAVINGS,
Defendant, Appellant.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the
corrected as follows:

court issued

on

August 22,

On page 2, line 12

insert period after "reverse"

On page 22, line 5

delete ", 1821(d)(6)"

1994

is

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 94-1509
SUNSHINE DEVELOPMENT, INC., ET AL.,
Plaintiffs, Appellees,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
AS LIQUIDATING AGENT FOR FIRST SERVICE BANK FOR SAVINGS,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
_________________________

Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Lagueux,* District Judge.
______________
_________________________

Gregory E. Gore, Counsel, with whom Ann S. DuRoss, Ass't

________________
______________
General Counsel, Robert D. McGillicuddy, Senior Counsel, Michelle
______________________
________
Kosse, Counsel, Steven A. Solomon, and Backus, Meyer & Solomon
_____
_________________
________________________
were on brief, for appellant.
Dennis G. Bezanson for appellees.
__________________
_________________________
August 22, 1994
_________________________
__________
*Of the District of Rhode Island, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

determine the scope

This

of the immunity from

appeal

requires us

to

injunctions granted to

the

Federal

Financial

Deposit

context

(FDIC)

proceedings.

FIRREA to

under

the

and Enforcement Act of

L. 101-73, 103 Stat. 842 (Aug.

of bankruptcy

Congress intended
and

Corporation

Institutions Reform, Recovery,

1989 (FIRREA), Pub.

the

Insurance

9, 1989), in

After sketching

operate, and clarifying

how

the source

extent of bankruptcy courts' powers to manage the estates of

debtors whose

fates are intertwined

financial institutions,

with the affairs

we conclude that the

the authority to restrain the FDIC in

statutory powers.

of failed

court below lacked

the exercise of its lawful

Accordingly, we reverse.
I.
I.
__
Background
Background
__________

The facts essential to

are not disputed.
Savings

made

an understanding of this appeal

Between 1985
total

of

and 1988, First Service Bank for

seven

separate

loans

Development, Inc. in connection with various

Salisbury
(Derry,

Pasture
New

Hampshire).
by three
and

(Franklin, New

Hampshire), and

projects, including

Hampshire),
Webster

Sunshine

Brightside Place

Street (Hudson,

New

The debt (much of which remains unpaid) is evidenced

promissory notes.

secured

154

to

by

mortgages

The notes
encumbering

are cross-collateralized
all

three

pieces

of

the collapse

of

property.
A
A
Neither lender

nor borrower survived

the

New England real estate market.

had

been made, First Service

31, 1989,

the

FDIC

was

A year after the last loan

was declared insolvent.

appointed as

thereby became the owner

liquidating

On March
agent

and holder of the notes).

(and

On November

24, 1989, Sunshine petitioned for voluntary reorganization

Chapter

11 of the Bankruptcy Code.

under

The FDIC seasonably filed a

proof of claim in the bankruptcy

court, asserting secured claims

amounting

to

In

petitioned

the bankruptcy

$4,948,203.87.

stay, see 11 U.S.C.

___

the

Sunshine

had

insurance

FDIC

against

asserted

failed to

premiums.

The

claim

in the

converted
appointed a

relief from

Sunshine's
trustee.1

the

FDIC

the automatic

it might initiate

the

real

bankruptcy court

Among

other

prior two

years

estate

taxes

granted the

and

FDIC's

No appeal ensued.
FDIC filed an

court.

bankruptcy
On

during

required

July 31, 1992, the

bankruptcy

1991,

the properties.

that

pay

petition on July 1, 1991.

On

court for

of

362(d)(1) & (2), so that

foreclosure proceedings
things,

April

In March
into

July 20,

amended proof of

of 1993,
Chapter

1993, the FDIC

the court
case

and

amended its

proof of claim once again.

illuminated in

Throughout, the FDIC, for reasons not

the record, abjured

any attempt to

foreclose on

the mortgages that it held.

B
B
Prior

to any

insolvency, the

bank and

the developer

____________________
1We henceforth refer to the debtor and its trustee
bankruptcy collectively as "Sunshine" or "appellees."

in

parted

company.

Each sued the

sought

to collect principal and interest due under the notes; in

the other, the borrower

other.

In one

sought to recover damages from

on various lender

liability theories.

in 1988, remained

dormant for some time.

court consolidated

suit, the bank

them

and

the bank

These suits, though begun

eventually

In

1991, the district

referred

the

ongoing

litigation to the bankruptcy court.

The
brought it to

bankruptcy
a head.

May of 1992, a jury not

court

repackaged

Following a two-week

the

litigation and

trial that ended in

only decided that Sunshine owed

nothing

to the FDIC as the bank's successor in interest, but also decided

that

Sunshine deserved

court

disagreed.

judgment

in

It

favor

$2,717,856.12.2

$2,000,000 in
set aside
of

the

the

See 28 U.S.C.
___

The bankruptcy

jury verdict

FDIC,

Sunshine appealed

February 12, 1993.

damages.

against
to

the

158(a).

and entered

Sunshine,

for

district court

on

The appeal (which we

shall term "the Merits Appeal") is still pending in that court.

C
C
The
foreclosure
Alarmed

pot

sale

came to
of all

a boil

three

when

properties

at the prospect of foreclosure

the FDIC
for May

scheduled a
11,

1994.

before the Merits Appeal

____________________

2At trial, the FDIC claimed that the borrower owed roughly
$3,951,000.
Sunshine contested a fraction of the debt (on the
basis that First Service failed properly to credit certain
interim payments), admitted that the remainder was due, and
sought to set off damages allegedly owed on the lender liability
claims against the balance.
The bankruptcy court's award
represents the portion of the underlying debt that Sunshine did
not controvert.
5

had been decided,3 appellees

injunctive
For whatever

relief to

petitioned the bankruptcy court for

pretermit the

proposed foreclosure

reason, the bankruptcy court

sale.

referred the petition

to the district court.

report

and

recommendation.

Proceeding on
remained

That court asked a magistrate-judge for a

the mistaken

in

force, the

See
___

Fed.

R.

Civ.

presumption that the

magistrate

recommended

P.

72(b).

automatic stay
issuance of

temporary restraining order aimed at halting the foreclosure.

The
See
___

id.
___

citing
court

FDIC immediately

It noted
FIRREA's

objected to

the recommendation.

the magistrate's mistake

and again asserted,

anti-injunction

lacked the authority to

district court
foreclosure

held

sale.

provision,

the district

grant the requested

hearing one

In the

that

course of

day

before

relief.
the

the hearing,

The

scheduled

the parties

acknowledged the magistrate's bevue and agreed that the automatic

stay had been dissolved almost three years earlier.
judge

nonetheless

properties

enjoined the

FDIC

pending determination

of

from

The district

foreclosing on

the Merits

Appeal.4

the

The

judge did not state the basis for his order.

____________________
3Sunshine

apparently

feared,

inter alia, that

if the
_____ ____
properties were sold in foreclosure and it subsequently prevailed
on its lender liability claims, it effectively would have lost
the right of setoff, and, instead, would be merely a general
unsecured creditor of the receivership. We take no view either
of the legitimacy of these fears or of the parties' rights,
should they materialize.

4The Merits Appeal is pending before a different district

judge.
At oral argument, the parties informed us that it was
heard and taken under advisement on May 24, 1994.
6

II.
II.
___
Standard of Review
Standard of Review
__________________
Black
district

letter

law

in

courts ordinarily are

this

circuit

instructs

that

to determine the appropriateness

of granting or denying a preliminary injunction on the basis of a

four-part

test

that

takes

likelihood

of

success

into

on the

account

merits,

(2)

(1)

the

movant's

the potential

for

irreparable injury, (3) a balancing of the relevant equities, and

(4) the effect on

the public interest.

See
___

Narragansett Indian
___________________

Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991);

_____
________
Oil Corp., 862 F.2d
_________

890, 892 (1st Cir. 1988).

Aoude v. Mobil
_____
_____

This formulation

can only be used in circumstances in which the district court

empowered to issue an injunction.

is

It is this antecedent question

the question of judicial power, sometimes called "jurisdiction"

that comprises the

centerpiece of this appeal.

while we ordinarily review

Consequently,

a district court's decision

to grant

or deny injunctive relief under a deferential abuse-of-discretion

standard, see,
___
this appeal
de
__

e.g., Narragansett Indian Tribe, 934 F.2d

____ __________________________
which presents a pure question of

novo review.
____

See McCarthy v.
___ ________

law

Azure, 22 F.3d
_____

at 5,

engenders

351, 354 (1st

Cir. 1994); Liberty Mut. Ins. Co. v. Commercial Union Ins. Co.,
______________________
__________________________
978 F.2d 750, 757
Tribe,
_____

934 F.2d

overturned

(1st Cir. 1992); see also

________
at

based on

5 (explaining
either "a

that

Narragansett Indian
___________________

an injunction

mistake of

law or

an

may

be

abuse of

discretion").
The

standard

of

review

is

particularly

important

because

this

case

recommendation
explicitly
court,
flawed,

though

its

Thus,

order

we are

very

we remand.

mistaken
court of

the

own

court's thinking.

necessary that

that

twist.

district

cognizant

issued

curious

premised on

informed the

explanation.
district

was

has

The

magistrate's

fact, the

parties

the error,

and the

magistrate's reasoning
without
much in

In the
Since we

end,

any

was

accompanying

the dark

as to

however, it

review the legal

is

the

not

issue de

__
novo,
____

access

to

the

district

prerequisite to appellate
articulated
increased
likely
(and

court's

review.5

reasoning below

as to

the risk of error

Withal,

parties')

an unexplained

opportunities

is

not

the absence of

this controlling

to be a poorly considered one

the

rationale

any

issue both

ruling being more

and reduced this court's

to benefit

from

the

lower

court's analysis.
III.
III.
____
Discussion
Discussion
__________
This case
several

turns on

the construction and

interplay of

provisions of the statutes that define the powers of the

FDIC and the bankruptcy courts,

respectively.

our starting point is the statutory

text.

In each instance,

See United States

___ _____________

v.

____________________

5We wish to make it crystal clear that we prize the thinking

of the district courts and encourage district judges to state the
basis for their rulings whether or not they are legally required
to do so. While our review of legal questions is de novo, we
__ ____
remain an appellate tribunal with the function of reviewing what
another court has already done:
the thinking and analysis of
that earlier tribunal
even when, on consideration, we disagree
with it
is integral to the judicial process within which both
courts are engaged.
8

Gibbens, ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-2203, slip op.
_______
at 12].
A
A
FIRREA

constitutes

vital

part

of

the

federal

government's response to the savings-and-loan crisis that

the nation
the

in the latter half of the last decade.

statute

involves,

organizations

and

101st

U.S.C.C.A.N.
unprecedented

obtain

"establish[ing]

and

institutions . .

Cong., 1st

86,

to

things,

The method of

administer

resolve failed thrift cases

the assets of [those]

101-54(I),

other

procedures

necessary funding to
of

among

103.

To

Sess.
this

powers so that it

end,

H.R. Rep. No.

reprinted in
_________ __

FIRREA

the

and to dispose

. ."

(1989),

rocked

gives the

1989

FDIC

may function efficaciously as a

receiver or conservator of insolvent financial institutions.

See
___

Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 705
_______________________
___________________
(1st Cir. 1992)
the

FDIC

(explaining that FIRREA

to move

quickly

preserve and consolidate the

see also 12 U.S.C.
___ ____
powers

to take

over

and

is designed to

without

"enable

undue interruption

to

assets of the failed institution");

1821(d)(2)(B) (giving the FDIC

the assets

of,

and operate,

wide-ranging
an

insured

depository institution

that fails); see generally

___ _________

H.R. Rep. No.

101-54(I), supra, 1989 U.S.C.C.A.N. at 126-29.

_____
One
U.S.C.

major

1821(j).

component of

the

statutory

scheme is

It states that, with exceptions

12

not relevant

here, "no court may take any action, except at the request of the
Board

of

Directors [of

the FDIC]

by

regulation or

order, to

restrain or affect

the exercise

of powers or

[FDIC] as a conservator or a receiver."

section 1821(j) is an anti-injunction
from

Id.
___

functions of

the

By its terms, then,

measure, preventing courts

issuing orders that unduly inhibit the FDIC in the exercise

of its statutory powers.6

Since the injunction issued below unabashedly restrains

and affects the FDIC, acting
inquiry
the

in its capacity as a

receiver, our

reduces to whether the activity that the injunction kept

FDIC from

FIRREA.
questions:

pursuing

This inquiry

falls within
is

the

actually composed

FDIC's powers
of two

under

subsidiary

(1) As a general matter, does the FDIC have the power

to foreclose? (2) If so, does

that power extend to the estate of

a bankrupt debtor?
B
B
The
affirmative.
take

over

answer

to

Congress

has given

the assets

institution,"

to

institution,"

and

property

of such

(ii), and

(iv).

the first

. .

to

the FDIC

. and

"collect all

query

conduct

is

institution."

all business
and

and conserve
12 U.S.C.

As receiver, the

in the

broad authority

obligations

"preserve

patently

of the

money due
the

"to

assets

the

and

1821(d)(2)(B)(i),

FDIC may "place

the insured

____________________
6Subject

to

enumerated

exceptions,

see 12
U.S.C.
___
1441a(b)(5), the Resolution
Trust Corporation (RTC),
when
operating as a receiver, enjoys the same powers, and is subject
to the same FIRREA protections, as the FDIC. See 12 U.S.C.
___
1441a(b)(4).
Of particular interest here, section 1821(j)
applies equally to both agencies.
Consequently, we will refer
freely to cases involving the RTC to illuminate section 1821(j)'s
reach in respect to the FDIC.
10

depository institution in liquidation and proceed to realize upon

the

assets

"transfer

of

the

any asset

institution," 12

U.S.C.

or

the

liability of

1821(d)(2)(E),

institution," id.

___
1821(d)(2)(G)(i)(II), and,
granted under

in

addition to

these statutes,

the specific

it may "exercise

powers

such incidental

powers as shall be necessary" to carry out its stated powers, id.

___
1821(d)(2)(J)(i).
Taken

in

the ensemble,

easily encompasses the grant

properties that
Lloyd v. FDIC,
_____
____
these

this

broad

array of

of a general power to

the failed institution held as

22 F.3d

335, 336 (1st

statutes as affording the

foreclose on the property

foreclose on

collateral.

Cir. 1994)

FDIC the "power

See
___

(interpreting

as receiver to

of a debtor"); see also

___ ____

Venture v. Onion, 938 F.2d

_______
_____

powers

281-300 Joint
_____________

35, 39 (5th Cir. 1991) (holding

that

"the ability of the conservator to foreclose on the property of a

debtor

[is] a

power that

Congress gave

to [agencies

like the

FDIC] under FIRREA"), cert. denied, 112 S. Ct. 933 (1992); Abbott
_____ ______
______
Bldg. Corp. v. United States,
___________
_____________
(similar).
court
a

Therefore,

a run-of-the-mill

Cir. 1991)

case, a

district

lacks the authority to enjoin the FDIC, acting lawfully as

receiver, from

Lloyd,
_____

in

951 F.2d 191, 194 (9th

22

foreclosing on

F.3d at

jurisdiction
foreclosing on

to

336-37

enjoin

the

security that

(holding that
FDIC,

acting

it holds.

district
as

See
___

courts lack

receiver,

from

a debtor's property); Telematics, 967 F.2d at 706

__________

(refusing to enjoin the FDIC from foreclosing on a certificate of

deposit because

section 1821(j)

"must be accorded

its ordinary

11

meaning"); see also Sweeney v. RTC, 16 F.3d 1, 6

___ ____ _______
___
(per curiam) (explaining that
designed to block
by

(1st Cir. 1994)

section 1821(j) bars an injunction

an imminent nonjudicial foreclosure

scheduled

the RTC); 281-300 Joint Venture, 938 F.2d at 39 (holding that

_____________________

under section

1821(j)

"the courts

lack the

ability to

enjoin

nonjudicial foreclosures that are within the statutory powers" of

the RTC qua receiver).
___
C
C
The
foreclose

second

extends to

query
the

whether
context of

the

FDIC's

power

to

bankruptcy proceedings

requires us to examine appellees' hydra-headed assertion that the

debtor's bankruptcy removes the FDIC's proposed foreclosure
from

the mine-run, and vests

here

the federal courts with injunctive

powers that would be lacking in respect to other FDIC foreclosure

initiatives.

Answering this

second query is

more complicated,

for the statutes

part

of

defining the

the relevant

bankruptcy

legal

authority of the
universe;

matters also must be

FDIC form

the statutes

consulted.

We

only

governing

devote the next

two sections of this opinion to the task of answering this second

query.
It

is not disputed that the

three properties on which

the FDIC seeks to foreclose constituted property of the debtor as

of the date of

bankruptcy and are

See 11 U.S.C.
___

541(a)(1) (explaining that the bankruptcy "estate

is comprised of
debtor

. . .

in property

thus property of the

all legal or

as of

estate.

equitable interests of

the commencement of

the case").

the

As

12

Sunshine

correctly

points

out,

the

district

court

obtained

jurisdiction over those properties by virtue of 28 U.S.C.

Pursuant to 28 U.S.C.
case

under

Title

1334(d), "[t]he district court in which a

11 is

commenced

exclusive jurisdiction of all

the

estate."

Id.;
___

or

is

pending shall

have

the property, wherever located, of

debtor as of the commencement

of the

1334.

see also
________

of such case, and of property

28

U.S.C.

1334(a)

(giving

district court "original and

exclusive jurisdiction of all cases

under title 11").

Sunshine argues that this statutory mosaic also infuses

the

district court

enjoin the FDIC.7

and/or the

bankruptcy court

This argument

with power

builds on the theory that, as a

general proposition, a bankruptcy

court may issue injunctions to

protect its exclusive jurisdiction over estate property.

U.S.C.

105(a) (empowering

order, process, or judgment

to

bankruptcy

courts

that is necessary or

carry out the provisions of this title"); see also

___ ____

See 11
___

to "issue

any

appropriate to

In re Olympia
_____________

Holding Corp., 141 B.R. 443, 446 (Bankr. M.D. Fla. 1992) (relying
_____________
on

the jurisdictional grant contained in 28 U.S.C.

the grant of
issue

protective powers contained

an injunction

proposition, Sunshine

to

safeguard estate

says, must mean that

1334(d) and

in 11 U.S.C.
property).

105 to

And this

the bankruptcy court

possesses the power to enjoin the FDIC when it is necessary to do

____________________

7Despite the fact that the district court issued the

injunction in this instance, the litigants argue the case
primarily in terms of the bankruptcy court's power to enjoin the
FDIC. We agree that, for purposes of this appeal, the district
court and the bankruptcy court can be treated interchangeably.
13

so in order to preserve the assets of the bankruptcy estate.

We
their point.
that

do not

think that

Rather,

and the

tension
conflict.

mean that

on the

other hand.

the statutes are

preferred

approach

dictates that a reviewing court

to

But

this

in irreconcilable

Germain, 112
_______
confronted by

S. Ct.

1146, 1149

statutory

See Connecticut Nat'l Bank v.

___ ______________________
(1992) (cautioning

arguably conflicting statutes must

where possible).

Here,

the perceived

apparent than real, for the statutes can be

to harmonizing them lies with 11 U.S.C.
Section

362 of

provision.

bankruptcy petition

It

construction

first determine if the perceived

conflict between two laws is real.

stay"

on one

As we explain below, they are not.

The

both,

the tension

anti-injunction provision,

bankruptcy laws,

does not

argument proves

it serves merely to highlight

exists between FIRREA's

hand,

the appellees'

in

give effect to

conflict

is more

reconciled.

The key

362.

the Bankruptcy
provides

that courts

Code is

substance

an "automatic
that

activates an automatic stay.

filing

That applies,

inter alia, to the commencement or continuation of most

__________

judicial

actions or proceedings against the debtor to obtain possession of

property

of the estate.

11 U.S.C.

362(a)(1),(3).

Foreclosure

constitutes an action or proceeding against the debtor within the

purview

of this law.

Hence, attempts to

foreclose come within

the statutory sweep and are banned unless and until the automatic

stay is lifted, see id.

___ ___

362(d).

Thus, no

person or entity has

a choate power to foreclose on property belonging to a bankrupt's

14

estate so long as the automatic stay is in place.

We
strictures

see

no

basis

of this regime

for exempting
when it

is acting

conservator.8

Because the

automatic stay

name

"automatic"

it operates

for
of

implies

judicial intervention.
the FDIC's

injunction
. . to

power

does

FDIC
as a

from

the

receiver or

is exactly what

the

without the necessity

Consequently, the stay's curtailment

not

run

afoul

of

FIRREA's

anti-

provision, which only prohibits "court . . . action .

_____

restrain or affect the exercise of

the [FDIC] as a . .
supplied).

the

. receiver."

On that basis,

powers or function of

12 U.S.C.

we are confident

1821(j)

(emphasis

that the automatic

stay does not violate FIRREA's anti-injunction provision

because

it arises directly from the operation of a legislative enactment,

not by court order.
125, 137 (2d

Accord In re Colonial Realty Co.,

______ _________________________

980 F.2d

Cir. 1992); Gross v. Bell Sav. Bank, 974 F.2d 403,

_____
_______________

407 (3d Cir. 1992).

The automatic stay works in tandem with the statutes on

which

Sunshine relies.

U.S.C.

1334

is

bankruptcy court,
court

The

designed

broad jurisdictional
to

grant of

centralize proceedings

and 11 U.S.C.

105

in

28

the

is designed to permit the

to protect that jurisdictional grant.

The automatic stay

____________________

8To be sure, 11 U.S.C.

362(b)(4) provides that the
automatic stay does not reach proceedings undertaken to enforce a
"governmental unit's police or regulatory power." But when the
FDIC operates as a receiver or conservator, it does not exercise
"regulatory power" within the meaning of this statute. See
___
generally Howell v. FDIC, 986 F.2d 569, 574 (1st Cir. 1993)
_________ ______
____
(distinguishing between FDIC acting in its corporate capacity as
a regulator and in its capacity as a receiver).
15

furthers

this

bringing

different

setting
maneuver

policy

in motion
to capture

by preventing

proceedings
a

in

different
different

free-for-all in
the lion's

a single

forum in

share of

order

courts,

which opposing
the

"The stay insures that the debtor's affairs

initially, in
_________

creditors

from

thereby

interests

debtor's assets.

will be centralized,

to prevent

conflicting

judgments

from different courts and in order to harmonize all of

the creditors'

interests

with one

another."

In re Colonial
________________

Realty, 980 F.2d at 133 (citation omitted) (emphasis supplied).

______

Nonetheless, the automatic stay does not always operate

in

perpetuity.

to

the debtor's

While the stay ensures that most matters related

estate will

bankruptcy court
the

same

in the
__ ___

statute

automatic stay
362(d)-(g).

the

bankruptcy

under enumerated

commenced before
go forward.

debtor

362(a).

a single

provisions of
relax

the

See
___

11 U.S.C.

stay is granted, an "action or

that

was

the commencement of the

Id.
___

wing of

court to

conditions.

Once relief from the

the

under the

first instance,9 further

_____ ________

permit

proceeding against

from the

come

or

have

been

[bankruptcy] case" may

In other words,

automatic stay the bankruptcy

could

by granting relief

court effectively yields

the exclusive control over the debtor's estate initially accorded

to it by section 1334(d).
With

all

pieces

in place,

the

assembled

doctrinal

____________________

9In the interests of accuracy, we note that certain property

is excepted from the operation of the automatic stay.
See 11
___
U.S.C.
362(b).
This exception has no relevance for present
purposes.
16

puzzle

looks

automatic

like

this:

stay work

the

together

relating to the bankrupt

to centralize

FDIC

creditor, is fully
were

to

proceeding,
authority

ignore

the

estate in the bankruptcy court.

While

actions

restraining

functions.

subject to it.
the

stay

and

the automatic

be

1821(j),

FDIC's exercise

of

foreclosure

acting within

After all,

its

FIRREA's anti-

only prohibits court

its

lawful powers
______

bankruptcy court grants the

stay, however, the court

carved out

or

without the automatic stay

At

that juncture,

into play.

Thereafter,

in place, the bankruptcy

court, like

court, is prevented from

restrain or affect

FDIC relief from

surrenders the preferred

for it.

FIRREA's anti-injunction provision comes

[FDIC]

this point the

initiate

would

12 U.S.C.

that Congress

any other

If at

like any

See 281-300 Joint Venture, 938 F.2d at 39.

___ _____________________
Once the

position

is in place, the FDIC,

an injunction.

injunction provision,

and the

claims

bankruptcy court

to issue

grant

nearly all

the legislatively mandated stay

other

jurisdictional

the exercise

taking "any action .

of powers or

as a conservator or receiver."

. . to

functions of

12 U.S.C.

1812(j).

the

So

viewed, the statutes under consideration do not conflict.

We

thus

answer

the

second

of

our

two

questions

affirmatively and hold

12 U.S.C.
this

that FIRREA's anti-injunction

1821(j), applies in the bankruptcy milieu.

phase

of

our inquiry.

In

this case,

automatic stay had been obtained long

foreclosure

proceedings,

and

relief

provision,

That ends

from the

before the FDIC instituted

Sunshine

had

not

appealed.

17

Consequently, the bankruptcy court

control

over the properties and,

injunction

provision,

could

not

had surrendered its exclusive

in the face
then

of FIRREA's anti-

reverse

direction

and

restrain the FDIC from going forward.10

D
D
In
section

a related

1334(b)

injunction

vein,

gives the

against

the

the appellees

also suggest

that

bankruptcy court

power to

FDIC,

notwithstanding.11

FIRREA

grant an

Appellees' reliance on this provision is misplaced.

We
rebuffed

need

not

a strikingly similar

in Board of Governors
__________________
(1991).

wax

longiloquent.

The

Supreme

Court

interpretation of section 1334(b)

v. MCorp Financial, Inc., 112 S. Ct.

______________________

459

There, the debtor contended that section 1334(b) gave a

bankruptcy

court concurrent

jurisdiction that

empowered

it to

____________________

10We are not aware of any instance involving either the FDIC
or the RTC in which a court reinstated the automatic stay after
having granted a party relief from it. We leave for another day
the dichotomous question whether reinstatement of a section
362(a) stay vis-a-vis the FDIC would be possible, and if so,
whether such reinstatement would constitute
"court action"
violative of 12 U.S.C.
1821(j). We likewise express no opinion
as to whether judicial implementation of a stay pursuant to
Bankruptcy Rule 8005 might run afoul of section 1821(j).
11The statute provides:
Notwithstanding any Act of Congress that
confers exclusive jurisdiction on a court or
courts other than the district courts, the
district courts shall have original but not
exclusive
jurisdiction
of
all
civil
proceedings arising under
title 11,
or
arising in or related to cases under title
11.
28 U.S.C.

1334(b).
18

enjoin ongoing administrative proceedings

Board,

despite

injunctions

in

a
such

debtor's argument,
allocation of

specific

statutory

circumstances.

holding

The

that section

of the Federal Reserve

provision
Court

precluding

rejected

the

1334(b) "concerns

the

jurisdiction between bankruptcy

courts and

other

`courts'" and that "an administrative agency such as the Board is

not a `court'."
similarly

MCorp, 112 S. Ct.

_____

inapplicable to

at 465.

a nonjudicial

Section

1334(b) is

foreclosure proceeding

undertaken by the FDIC (which, like the Federal Reserve Board, is

not a "court").12
E
E
The
strive

to

appellees have one more shot in their sling.

persuade

us

that,

regardless

injunction provision, authority to enjoin

in

the bankruptcy

which the FDIC

court's

general

subjected itself

litigating in the

of

FIRREA's

anti-

the FDIC can be

found

equitable jurisdiction,

by filing proofs

bankruptcy court.

They

For this

of claim

to

and

thesis, appellees

rely almost exclusively on the bankruptcy court's reasoning in In

__
re Tamposi Family Inv. Properties, 159
__________________________________
1993).

But the

B.R. 631 (Bankr.

reasoning of the Tamposi court

_______

D.N.H.

cannot withstand

scrutiny.13
____________________

12This case presents a relatively easy question involving an

ill-starred effort to apply section 1334(b) to nonjudicial
proceedings instituted by an administrative agency. We intimate
no opinion regarding that section's applicability vel non to the
_______
FDIC in other settings.

13It is important to note that, although Tamposi's reasoning

_______
is flawed, the result in the case may be defensible. See, e.g.,
___ ____
In re Parker North Amer. Corp., ___ F.3d ___, ___ (9th Cir. 1994)
______________________________
19

There, the debtors brought adversary complaints against

the FDIC under

11 U.S.C.

that had

made to

been

547(b), seeking
the failed

to avoid

bank less

transfers

than ninety

days

before the debtors declared bankruptcy.

See Tamposi, 159 B.R. at

___ _______

632-33.

bankruptcy court

The

FDIC contended

subject matter

jurisdiction under 12 U.S.C.

FIRREA provision
over

. .

assets of

that the

. [a]ny

stating that "no court

claim or action

any depository

been appointed receiver . . . ."

FDIC's

contention because

bankruptcy

proceeding, the

the process of allowance

the heart

"by

1821(d)(13)(D), a

shall have jurisdiction

for payment

institution for

from .

which the

The Tamposi
_______
filing a

. . the

[FDIC] has

court rejected the

proof

of claim

creditor/claimant submits

in

itself to

and disallowance of claims which

of a bankruptcy court's

lacked

is at

subject matter jurisdiction."

Tamposi, 159 B.R. at 634.

_______
The
desired.

Tamposi
_______

court's

In the first place,

636, misread our opinion in

reasoning

leaves

much

to

be

the bankruptcy court, 159 B.R. at

Marquis v. FDIC, 965 F.2d

_______
____

1148 (1st

Cir. 1992).
modicum of
against
been

In Marquis,
_______
subject

matter

failed financial

appointed as

bar

we held

of

12

providing

that federal courts

jurisdiction

over

institutions even

after the

receiver, notwithstanding

U.S.C.

1821(d)(13)(D)

(a

actions

retain a

pending

FDIC has

the jurisdictional
FIRREA

that "no court shall have jurisdiction

accouterment

over . . . any

____________________

[1994 WL 192456, at *9] (holding that section 1821(d)(13)(D) does

not bar a bankruptcy court from hearing a preference action
against the RTC).
20

claim

or

action

determination

of

for payment

from,

rights with

respect

depository institution
receiver").
matter of
FIRREA that
which

See id.
___ ___

at 1155.

We

any
to,

the Marquis
_______

the assets

any

as a

other language in

continue any action

of a receiver,"

actions pending

been appointed

12 U.S.C.

Moreover, we specifically limited

holding to

of

arrived at this holding

addresses claimants' rights "to

was filed before appointment

action seeking

the [FDIC] has

statutory interpretation, stressing

1821(d)(5)(F)(ii).
of

for which

or

in a

the reach

federal court

prior

to the FDIC's appointment as receiver or conservator.

See
___

id. at 1154.
___
The Tamposi court ignored this limitation.
_______

Instead, it

erroneously asserted that whether proceedings were pending at the

time

of the FDIC's appointment "is irrelevant under the logic of

Marquis." Tamposi, 159 B.R. at 636.

_______
_______
the
a

This assertion is incorrect:

holding in Marquis cannot be transplanted root and branch to

_______
wider class of cases.

in the Tamposi context

_______
The
that the

Specifically, the holding is inapposite

and it is similarly inapposite here.

second problem

with the

the somewhat

mundane proposition

Each of these cases

that "by

against a bankruptcy estate the creditor triggers

allowance and disallowance of claims,

42, 44

(1990) (citation and

21

filing

stands

a claim

the process of

thereby subjecting himself

to the bankruptcy court's equitable powers."

498 U.S.

Tamposi is
_______

opinion places too great a premium on a trio of Supreme

Court cases not involving the FDIC.

for

reasoning of

Langenkamp v. Culp,
__________
____

internal quotation

marks

omitted); accord
______
59

Granfinanciera, S.A. v. Nordberg,

____________________
________

n.14 (1989) (noting that

"by submitting a

bankruptcy estate, creditors

492 U.S. 33,

claim against the

subject themselves

to the

court's

equitable power to disallow those claims"); Katchen v. Landy, 382

_______
_____
U.S. 323,

329-30 (1966) (similar).

proposition pertains to the FDIC

present purposes begs the

We

do not doubt

that this

but staking the farm on it for

question of what equitable

powers the

bankruptcy court possesses vis-a-vis particular litigants.

Once

the

question

is

properly

framed,

involvement makes a dispositive difference.

is a creature of statute, and Sunshine
is

beyond

available

Congress's

to that court or

jurisdiction.
the

subjects

party

conjunction

write.

powers

to the

12]

limit

be read in
with

bankruptcy

the

remedies

matters from its

court's

the

specific

statutory

that

must be

language,

that Congress subsequently saw fit

Cf. Vimar Seguros y Reaseguros, S.A.

___ ___________________________________

(explaining

to

equitable

isolation, but, rather,

Reefer, ___ F.3d ___, ___ (1st Cir.

______
at

to

proposition that filing a proof of

contained in section 1821(j),

to

has not suggested that it

the bankruptcy court included

The general

jurisdiction cannot
in

The bankruptcy court

to remove selected

authority of all courts

claim

FDIC's

Here, Congress exercised that very power, limiting

enjoin the FDIC.

read

lawful

the

v. M/V Sky
________

1994) [No. 93-2179, slip op.

specific,

later-enacted

statute

"ordinarily controls the general") (collecting

Fraternal Order of Eagles, 915
___________________________

F.2d 235,

cases); Watson v.
______

240 (6th

Cir. 1990)

(same).
22

Finally, and

relatedly, to accept the

reasoning would be to stand FIRREA on its ear.

After all, once a

party

declares

money

owed is by filing proofs of claim in the bankruptcy court.

Under

the

Tamposi
_______

conservator
either

bankruptcy, a

Tamposi court's
_______

is

elect

protections.

regime,

also a
to

In

creditor's principal

when

the

creditor of

forgo its

claim

or

FDIC

as

recourse to

receiver

bankrupt, the

FDIC must

to

statutory

waive its

the most auspicious of circumstances,

be reluctant to read section

or

we would

1821(j) as constructing so perverse

a paradigm.
Here,
for

the circumstances

the statute is prefaced

provided in

this section

identify those occasions on

are anything

by the phrase
. .

."

This

but auspicious,

"Except as otherwise
language serves

which the anti-injunction

to

provision

lacks

force.

now,

See, e.g.,
___ ____

law

itself

exemptions, the maxim

ordinarily

1821(c)(7), 1821(c)(8)(C).

contains

an

enumeration

"expressio unius

applies.

Under

that

of

applicable

est exclusio

alaterius"

maxim,

affirmative description

of certain powers

denial

powers or

of nondescribed

Cas. Co. v. United States, 314

________
_____________

generally
_________

2A

Norman

legislature's

or exemptions implies

exemptions.

See Continental
___ ___________

U.S. 527, 533 (1942); Park Motor

___________

Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605

__________
______________
see
___

When, as

J. Singer,

47.23, at 216-17 (5th ed. 1992).

(1st Cir. 1980);

Sutherland Stat. Const.

_________________________

So it is here.

IV.
IV.
___
Conclusion
Conclusion
__________
23

We
the

need go no further.

statutory

provisions

There is

defining

the

no conflict between
bankruptcy

courts'

jurisdiction and the FDIC's powers while the automatic stay is in

place.

When and if

a bankruptcy court

grants relief from

stay for a particular purpose, however, the

in this regard

are spelled

out by FIRREA's

the

FDIC's powers, which

recent, clear,

and

specific language, come to the fore and trump the residual powers
of

the courts.

Had

interface between

the court

below correctly

the relevant statutory schemes,

understood the

it would have

realized that, because the automatic stay had been dissolved, the
appellees
1821(j)

were requesting
considered,

relief of

exceeded

Consequently, the injunction

a kind

the district
issued by the

stand.

Reversed.
Reversed.
________

24

that, 18
court's

U.S.C.

authority.

lower court may

not