Auction Co. of America v. Federal Deposit Insurance

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1997 Decided December 19, 1997

No. 96-5343

Auction Company of America,

Appellant

v.

Federal Deposit Insurance Corporation, as Manager of the

FSLIC Resolution Trust Fund,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 94cv02006)

Alan M. Grayson argued the cause and filed the briefs for

appellant.

J. Scott Watson, Counsel, Federal Deposit Insurance Cor-

poration, argued the cause for appellee. With him on the

brief were Ann S. DuRoss, Assistant General Counsel, Fed-

eral Deposit Insurance Corporation, Robert D. McGillicuddy,

Senior Counsel, Roberta H. Clark, Counsel, Federal Deposit

Insurance Corporation, and Robert P. Fletcher.

Before: Wald, Williams and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Auction Company of America

("Auction Company") seeks damages for breach of contract

from the Federal Deposit Insurance Company ("FDIC") as

statutory successor to the Resolution Trust Corporation

("RTC"). It filed the first of three suits (and the one both

parties regard as controlling for limitations purposes) four

years and one day after the cause of action accrued. The

filing was too late under the District of Columbia's three-year

limitations period for contract actions, 12 D.C. Code s 301(7),

but timely under either the general six-year limitations period

for civil actions against the United States, 28 U.S.C.

s 2401(a), or the Missouri five-year contract limitations peri-

od, Mo. Ann. Stat. s 516.120(1). The district court ruled that

the federal statute did not govern and performed a choice-of-

law analysis to arrive at the D.C. limitations period. It thus

dismissed the complaint. Because we find that the federal

statute does apply, we reverse and remand without reaching

the state choice-of-law issue.

* * *

Auction Company's claim is that it entered into a contract

with the RTC, as receiver for certain failed thrifts, to auction

off key thrift assets. On September 18, 1990, after a number

of actions that according to Auction Company impeded its

efforts to organize the auction, the RTC terminated the

contract and thereby breached it. Four years and one day

later, on September 19, 1994, Auction Company filed its first

complaint.

That complaint's caption named the RTC as defendant, but

also said that the suit was against the RTC in its corporate

capacity ("RTC-Corporate"). The RTC responded with a

motion to dismiss, arguing that it was a legal entity distinct

from the RTC as Receiver and could not be sued for contrac-

tual liabilities of the RTC as Receiver. In briefing the motion

it also asserted that the statutory provisions for administra-

tive determination of claims against depository institutions,

see 12 U.S.C. s 1821(d)(3)-(13), imposed an exhaustion re-

quirement on Auction Company's contract claim. On June

15, 1995, Auction Company submitted its claim for adminis-

trative determination by the RTC as Receiver, but at the

same time protested that its contract action ran against the

RTC, not against a depository institution, and was therefore

not subject to the administrative claim allowance procedures.

12 U.S.C. s 1821(d)(5) requires the RTC as Receiver to

allow or disallow claims within 180 days. Without waiting for

the end of this period, Auction Company filed a second suit on

October 4, 1995. This complaint named the RTC as Receiver

as defendant but was in other respects identical to the first.

The RTC as Receiver moved to dismiss on the grounds that

Auction Company had not exhausted its administrative reme-

dies. On February 9, 1996, following the disallowance of its

claim by RTC as Receiver, Auction Company filed its third

suit. By this time the RTC no longer existed; its authorizing

statute provided for termination on December 31, 1995. See

12 U.S.C. s 1441a(m)(1). The FDIC, its statutory successor,

was named as defendant in the third suit and was substituted

into the first two. We do not believe this substitution affects

our analysis, and we will limit our focus to the FDIC.

All three actions were consolidated before the district

court. The FDIC moved for judgment on the pleadings

under Rule 12(c), seeking dismissal on the grounds that the

District of Columbia three-year statute of limitations for

contracts applied. Auction Company suggested instead the

six-year limitations period for civil actions against the United

States. See 28 U.S.C. s 2401(a). Alternatively, it noted that

the contract at issue contained a choice-of-law clause selecting

Missouri law, and argued that the Missouri statute of limita-

tions should govern. The district court, treating the 12(c)

motion as "essentially" one to dismiss under 12(b)(6), ruled

that the FDIC was not "the United States" for the purposes

of 28 U.S.C. s 2401(a). It thus proceeded to pick between

the D.C. and the Missouri statutes of limitation. Reviewing

de novo, we find error in the first determination and stop at

that juncture: Section 2401(a) does apply, and Auction Com-

pany's suits were timely.

* * *

28 U.S.C s 2401(a) provides that "every civil action com-

menced against the United States shall be barred unless the

complaint is filed within six years after the right of action

first accrues." The question for this appeal, broadly stated, is

whether the FDIC counts as the United States for the

purposes of this provision. The district court was impressed

by O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994), which

contains the striking phrase "the FDIC is not the United

States," id. at 85. But as the O'Melveny Court was not

interpreting 28 U.S.C. s 2401(a), or indeed any other federal

statute, this language cannot be controlling. Whether the

FDIC should be treated as the United States depends on the

context. See FDIC v. Hartford Ins. Co. of Ill., 877 F.2d 590,

592-93 (7th Cir. 1989).

In O'Melveny the FDIC as Receiver sued the counsel of a

failed savings and loan for malpractice and breach of fiduciary

duty in failing to expose frauds in the management of the

S&L. The lawyers defended on the grounds that the man-

agement was fully aware of its own frauds, and that knowl-

edge of those frauds must therefore be imputed to the S&L,

and thence to the FDIC as Receiver. The argument was a

possible winner for the lawyers under California's imputation

law, but the FDIC argued that state law should be displaced

by federal common law. Immediately after the Court's decla-

ration that the FDIC was not the United States, it twice

discounted the significance of the remark, noting that: (1)

even if the FDIC were the United States it would be begging

the question to assume that it was asserting its own rights

rather than those of the S&L; and (2) even if federal law

governed in the sense explained in United States v. Kimbell

Foods, Inc., 440 U.S. 715, 726 (1979), i.e., a sense that

includes federal adoption of state law rules, that would "not

much advance the ball." The Court decided that state law

should apply: "[T]his is not one of those extraordinary cases

in which the judicial creation of a federal rule of decision is

warranted." O'Melveny, 512 U.S. at 89.

Creating federal common law is one thing, applying a

federal statute quite another. State law will generally fill the

gaps in a comprehensive federal statutory scheme such as the

FDIC's enabling legislation, but it will not do so to the

exclusion of another applicable federal statute. See id. at 85.

If s 2401(a) applies, it does so by its own terms, so long as

not contradicted by some other federal statute, not by virtue

of any lawmaking power of federal courts. On the question of

the scope of "United States" in s 2401(a), O'Melveny provides

no guidance.

So we turn to the statute itself. Section 2401(a) originated

as the internal limitations period for the Little Tucker Act.

See Christensen v. United States, 755 F.2d 705, 707 (9th Cir.

1985); Saffron v. Dep't of the Navy, 561 F.2d 938, 944-45

(D.C. Cir. 1977). That act and its big brother the Tucker Act

collectively establish jurisdiction and a waiver of sovereign

immunity for certain cases that are "against the United

States" and founded upon various bases including "any ex-

press or implied contract with the United States." For

contract cases, the Little Tucker Act gives the district courts

jurisdiction, concurrent with the Court of Federal Claims, if

the amount sought is less than $10,000. If more than $10,000

is at issue, the suits lie only in the Court of Federal Claims

under the Tucker Act proper. See 28 U.S.C. s 1346(a)(2); 28

U.S.C. s 1491; see also Saffron, 561 F.2d at 944. In the 1946

U.S. Code, the Little Tucker Act was located at 28 U.S.C.

s 41(20), which provided in part, "No suit against the Govern-

ment of the United States shall be allowed under this para-

graph unless the same shall have been brought within six

years after the right accrued for which the claim is made."

The Act of June 25, 1948 made minor changes in the wording

and relocated this language to 28 U.S.C. s 2401(a), where it

was to function as a catch-all limit for non-tort actions against

the United States.

While this shuffle expanded the function of s 2401(a), see,

e.g., Daingerfield Island Protective Society v. Babbitt, 40

F.3d 442, 445 (D.C. Cir. 1994) (applying s 2401(a) to APA

suit); Impro Products v. Block, 722 F.2d 845, 850 n.8 (D.C.

Cir. 1983) (same), the section remained applicable as ever to

Little Tucker Act suits. See, e.g., Loudner v. United States,

108 F.3d 896, 900 (8th Cir. 1997). Thus, barring some

exceptional statutory twist, the term "United States" must

have the same meaning in s 2401(a) as in the Little Tucker

Act. And hence if the FDIC as Receiver is the United States

for the Little Tucker Act, it must be also for s 2401(a).

Does the Little Tucker Act treat the FDIC as Receiver as

the United States? Jurisdiction over contract claims, under

either Tucker Act, exists only for contracts "with the United

States." If a contract with the FDIC as Receiver supports

jurisdiction under either Tucker Act, then it counts as a

contract with the United States, and the FDIC as Receiver

must be "the United States" for the Tucker Acts. So the key

question turns out to be whether a contract with the FDIC as

Receiver will allow a Tucker Act suit. If that is so, then the

equivalent meaning of "United States" in the Little Tucker

Act and its statute of limitations allows us to conclude that

the FDIC as Receiver is the United States for the purposes

of s 2401(a).

The answer to the question is yes; the Act may be invoked

whenever "a federal instrumentality acts within its statutory

authority to carry out [the government's] purposes" as long

as no other specific statutory provision bars jurisdiction.

Butz Engineering Corp. v. United States, 499 F.2d 619, 622

(Ct. Cl. 1974); see also L'Enfant Plaza Properties, Inc. v.

United States, 668 F.2d 1211, 1212 (Ct. Cl. 1982). The FDIC

concedes that the FDIC as Receiver is a federal instrumen-

tality; indeed, eager to argue that it is not an agency, it

pushes instrumentality status aggressively. See FDIC Br. at

9-10. Doctrinally, the fit is relatively easy, and in fact

contracts with the FDIC (and the RTC) have occasioned suits

under the Tucker Act.1 See, e.g., Slattery v. United States,

__________

1 These decisions have often been cursory or unclear in their

treatment of the Receiver/Corporate distinction, but the FDIC

gives us no persuasive reason why the distinction makes a differ-

ence here. The RTC as Receiver did not inherit this contract from

defunct depositories; it entered into the contract in furtherance of

its statutory mission, and the rights and obligations at issue are its

rights and obligations, not those of the depositories. Cf. O'Melve-

ny, 512 U.S. at 85-87 (discussing role of FDIC as Receiver).

35 Fed. Cl. 180 (1996) (FDIC contract); Suess v. United

States, 33 Fed. Cl. 89 (1995) (Office of Thrift Supervision and

RTC contracts). The FDIC has even argued, with some

initial success, that because it is the United States, it can only

be sued under the Tucker Act and hence in the Court of

Federal Claims. See, e.g., FDIC v. Hulsey, 22 F.3d 1472,

1480 (10th Cir. 1994) (rejecting argument); Farha v. FDIC

963 F.2d 283, 288 (10th Cir. 1992) (accepting argument).

As the FDIC as Receiver counts as the United States for

the Tucker Act, it does so for the Tucker Act (and general

federal) statute of limitations. The FDIC appears to take

refuge in the idea that the captioning of the lawsuit somehow

outweighs the functional identity of the United States and its

instrumentalities for the purposes of s 2401(a). But that

argument has been overwhelmingly rejected, by this circuit

and others, in the specific context of the application of

s 2401(a). See, e.g., Mason v. Judges of the U.S. Court of

Appeals for D.C., 952 F.2d 423, 425 (D.C. Cir. 1991) ("[A] civil

action against a federal official based on that person's official

actions is 'a civil action commenced against the United States'

under s 2401(a)."); Blassingame v. Secretary of the Navy,

811 F.2d 65, 70 (2d Cir. 1987) (discarding "fiction that an

action alleging unlawful conduct by a federal official ... and

an agency, is not an action against the United States");

Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985) (same);

Oppenheim v. Campbell, 571 F.2d 660 (D.C. Cir. 1978) (Civil

Service Commission is United States for s 2401(a)); see also

Hartford Insurance, 877 F.2d at 592 (in finding statute

assigning venue for certain cases against the FDIC as receiv-

er of national banking associations applicable even though

claimant captioned case as against the United States, asks

rhetorically, "What is 'the Federal Deposit Insurance Com-

mission as receiver' other than part of the United States?");

Portsmouth Redevelopment and Housing Auth. v. Pierce, 706

F.2d 471, 473 (4th Cir. 1983) (discussing conditions under

which action against federal agency is against United States).

In the context of the Administrative Procedure Act, to which

s 2401(a) applies, see Sierra Club v. Slater, 120 F.3d 623, 631

(6th Cir. 1997); Daingerfield, 40 F.3d at 445, the statute's

words reject the FDIC's approach: in authorizing suits for

judicial review, it lumps together suits "against the United

States, the agency by its official title, or the appropriate

officer." 5 U.S.C. s 703.

* * *

This is not a Tucker Act suit, however, nor one under the

APA. The FDIC could have argued, though it did not, that

what distinguishes a suit against an agency from a suit

against the United States is not the captioning of the com-

plaint but the operative waiver of immunity. Section 2401(a),

of course, is not limited to suits brought under the Tucker Act

or the APA, but the FDIC could have argued that waiver

under a sue-or-be-sued clause is different. Such a clause, the

argument would go, lifts the immunity of only the agency, not

the United States (assuming that that makes sense), and a

suit in district court based on such a clause is accordingly not

against the United States, even if the Tucker Act provides

alternative Court of Federal Claims jurisdiction. The parties

disagree about the source of district court jurisdiction here,

and one likely reason the FDIC did not make this argument

is that its brief locates the basis for jurisdiction in the district

court's ability to review administrative disallowances of claims

against depositories.2

The FDIC's theory of jurisdiction, however, is wrong. As

we observed earlier, supra n.1, Auction Company is not suing

to enforce a contract with a defunct depository but to enforce

one made initially and exclusively with the RTC. According-

ly, we examine this alternative argument on the basis of

Auction Company's jurisdictional theory. Auction Company

finds a waiver of sovereign immunity in FDIC's enabling

legislation, the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 ("FIRREA"), which empowers it to

sue and be sued "in any court of law or equity, State or

Federal." 12 U.S.C. s 1819(a) Fourth; see also United

States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (such

__________

2 We address this argument despite the FDIC's failure to raise it

because, in some guises, it has jurisdictional overtones. See, e.g.,

Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49,

56 (2d Cir. 1985) (source of funds to pay judgment is jurisdictional

issue).

clauses are broad waivers of immunity). And Auction Com-

pany finds subject matter jurisdiction in FIRREA's "deemer"

clause, 12 U.S.C. s 1819(b)(2)(A), which provides (with an

exception not relevant here) that all actions to which the

FDIC is a party "shall be deemed to arise under the laws of

the United States." District courts can thus hear these

actions as part of the "arising under" jurisdiction granted by

28 U.S.C. s 1331. See Osborn v. Bank of the United States,

22 U.S. (9 Wheat) 738 (1824); Williams v. Federal Land

Bank of Jackson, 954 F.2d 774, 776 (D.C. Cir. 1992).

The FDIC's argument, given these propositions, would be

that when an agency is sued in its own name pursuant to a

sue-or-be-sued clause, recovery is limited to funds within the

agency's control, and the suit is not against the United States.

A suit is against the United States, the argument goes, only if

recovery would come from general Treasury funds. This

position finds some support in the case law, beginning with

suits against the Department of Housing and Urban Develop-

ment but now reaching the FDIC and other agencies. See,

e.g., Licata v. United States Postal Service, 33 F.3d 259, 262

(3d Cir. 1994) (claim against Postal Service in its own name is

not a claim against the United States); Far West Federal

Bank v. Director, Office of Thrift Supervision, 930 F.2d 883,

890 (Fed. Cir. 1991) (same with respect to FDIC); Falls

Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49,

55 (2d Cir. 1985)(same with respect to HUD); Industrial

Indemnity, Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir. 1980)

(same with respect to HUD). Cf., e.g., Portsmouth, 706 F.2d

at 473 (suit against HUD is against United States because

HUD monies are originally Treasury funds); Marcus Garvey

Square, Inc. v. Winston Burnett Construction Co., 595 F.2d

1126, 1131 (9th Cir. 1979) (same because no separate funds

identified).

If we followed the analysis of these decisions, the FDIC

could make the argument that this suit seeks funds under

FDIC control and hence is not against the United States,

pointing perhaps to 12 U.S.C. s 1821a(d), which limits some

judgments to the assets of the FSLIC Resolution Fund. See

Far West, 930 F.2d at 889-90 (finding funds within FDIC's

control and rejecting Government argument of exclusive

Claims Court jurisdiction). But making the argument would

not even be necessary. Simply accepting the terms of the

debate--the notion that suits against the United States and

suits that may only generate judgments against specific agen-

cy funds are mutually exclusive categories--would spell victo-

ry for the FDIC. If the suit were against the United States

(and not the FDIC), sovereign immunity would bar the

district court from hearing it because the sue-or-be-sued

clause does not waive the immunity of the United States and

no other waiver allows district court jurisdiction; recast as a

Tucker Act suit, this case would have to be brought in the

Court of Federal Claims because it demands more than

$10,000. If the suit were against the FDIC (and not the

United States), s 2401(a) could not apply. Compare Ports-

mouth, 706 F.2d at 473 (finding exclusive Claims Court

jurisdiction where suit is against U.S.) with Ammcon, Inc. v.

Kemp, 826 F. Supp. 639, 643-44 (E.D.N.Y. 1993) (finding

s 2401(a) inapplicable where suit is against HUD). Because

we believe this reasoning is fundamentally confused, we avoid

it entirely and accept neither horn of the dilemma.

A demonstration of the confusion requires a brief trip into

the origins of the distinction between suits against the United

States and those against an agency. In Federal Housing

Administration, Region No. 4 v. Burr, 309 U.S. 242 (1940),

the Supreme Court noted that the statute authorizing suit

against the Federal Housing Administration specified that

claims could be paid only from funds made available to the

agency under that very statute. Id. at 250. This of course

did no more than state the unexceptionable principle that

Congress, in waiving sovereign immunity for an agency, may

limit the terms of the waiver.

As later cases picked up Burr, however, the doctrine

changed shape. Marcus Garvey Square, 595 F.2d at 1131,

restated it as the principle that a suit is against an agency

only if plaintiffs can point to agency monies to satisfy a

potential judgment. If no identifiable fund within the posses-

sion and control of the agency exists, the suit is in reality

against the United States. For this proposition, Garvey cited

Burr and the sovereign immunity classics Dugan v. Rank,

372 U.S. 609, 620 (1963), and Land v. Dollar, 330 U.S. 731,

738 (1947). The Garvey court concluded that because no such

fund could be found, Claims Court jurisdiction was exclusive

despite a sue-or-be-sued clause: Recovery would be against

the U.S. and could be had only pursuant to the Tucker Act

waiver.

It is at this point that confusion becomes evident. The

practical weakness of the idea that recovery of funds within

an agency's control is not recovery against the United States

is, we think, well exposed by the Fourth Circuit's observation

that "[t]he funds appropriated to HUD ... clearly originate

in the public treasury, and they do not cease to be public

funds after they are appropriated." Portsmouth, 706 F.2d at

473-74. Cf. Kauffman v. Anglo-American School of Sofia,

28 F.3d 1223, 1227-28 (D.C. Cir. 1994) ("[D]iversion of re-

sources from a private entity created to advance federal

interests has effects similar to those of diversion of resources

directly from the Treasury.").3

The logical fallacy is just as clear. To ascertain whether a

suit is against the United States, rather than a federal

agency, the Marcus Garvey court and similar cases have

turned to the test enunciated in Dugan and Land. See, e.g.,

Portsmouth, 706 F.2d at 473 (citing Dugan); Industrial

Indemnity, 615 F.2d at 646 (citing both); Marcus Garvey,

595 F.2d at 1131 (citing both). But this test was designed to

__________

3 The effects are similar because, regardless of the origin of the

funds, their loss forces the Government "to choose between allowing

its interests to be served less well and spending more money to

make up the shortfall." Kauffman, 28 F.3d at 1227. It may

sometimes be true, of course, that enough claims have already been

allowed against a discrete fund to exhaust it, so that allowing a new

claim will change the distribution to claimants but have no other

effect on governmental interests. That might occur where the

FDIC is merely determining claims that accrued against a deposito-

ry institution before the FDIC's appointment as receiver, and will

use only the institution's assets to satisfy the claims pro rata. As

discussed in note 1, supra, this case is different.

distinguish suits against private individuals from ones

against the sovereign; it identifies those cases in which

sovereign immunity vel non exists. See Dugan, 372 U.S. at

620; Land, 330 U.S. at 738. Federal agencies or instrumen-

talities performing federal functions always fall on the "sover-

eign" side of that fault line; that is why they possess immuni-

ty that requires waiver. To say that suits against agencies

are not against the United States in that sense is simply

wrong; to say that they are against the United States and not

the agency is to make "sue-or-be-sued" clauses nullities. The

idea that the Dugan test may be used to draw two different

lines--the line between suits against the United States and

ones against private persons, and the line between suits

against the United States and ones against its agencies--is

confused at its core and we reject it.4 The source of funds for

any recovery in this case may become an issue, but it is not

jurisdictional and does not bear on whether a suit against the

FDIC as Receiver is a suit against the United States for

purposes of s 2401(a).

* * *

So we find the argument the FDIC did not make no more

persuasive than the one it did. Focusing on the waiver of

immunity is valuable, however, because it permits a deeper

understanding of the nature of s 2401(a) and discloses a

functional rationale for its application that is perhaps more

satisfying than its historical origins in the Tucker Act. As a

consequence of the different waivers of immunity available,

plaintiffs suing the FDIC have a fairly wide choice of forum,

__________

4 Distinguishing between suits against agencies and those against

the United States would frequently be necessary if Tucker Act

jurisdiction were preemptive--that is, if Tucker Act jurisdiction by

its mere existence barred jurisdiction granted by another statute.

It does not. If a separate waiver of sovereign immunity and grant

of jurisdiction exist, district courts may hear cases over which,

under the Tucker Act alone, the Court of Federal Claims would

have exclusive jurisdiction. See Bowen v. Massachusetts, 487 U.S.

879, 910 n.48 (1988); First Virginia Bank v. Randolph, 110 F.3d 75,

77 (D.C. Cir. 1997).

at least if they sue in contract.5 They may bring suit in the

Court of Federal Claims, if they have a Tucker Act suit for

more than $10,000; they may bring a Tucker Act suit for a

lesser amount in either the Court of Federal Claims or a

district court; and they may sue in any court of law or equity

under the FDIC sue-or-be-sued clause. The question of

whether to apply 28 U.S.C. s 2401(a) comes down to whether

a specific limitations period is somehow tied to the choice of

forum.

According to the FDIC, it should be: A suit under the sue-

or-be-sued clause, naming the FDIC as Receiver, should be

subject to the appropriate state statute of limitations. A

Tucker Act suit naming the United States should be subject

to s 2401(a). What to do with a Tucker Act suit that does

not name the United States as defendant (a small but non-

empty class, see, e.g., Kline v. Cisneros, 76 F.3d 1236 (D.C.

Cir. 1996); cf. Optiperu v. Overseas Private Investment Cor-

poration, 640 F.Supp. 420, 421 (D.D.C. 1986)), is unclear.

This sort of approach might make some sense if the Tucker

Act and the sue-or-be-sued clause provided distinct causes of

action. What each provides, however, is simply a waiver of

sovereign immunity; the causes of action will be based on the

contracts at issue. Accordingly, we can see no basis for tying

the limitations period to the source of jurisdiction.

More specifically, s 2401(a) represents Congress's general

qualification--on the limitations issue--of its consent to suit

against the United States. See Saffron, 561 F.2d at 941. To

conclude that it applies, we need only find that the waiver

contained in FIRREA's sue-or-be-sued clause did not displace

it and thereby install whatever state law might fill the gap.

This we have no difficulty doing; the FIRREA sue-or-be-

sued clause does not usually operate to the exclusion of other

federal statutes. See Meyer, 510 U.S. at 476. "The courts

are not at liberty to pick and choose among congressional

enactments, and when two statutes are capable of co-

__________

5 Tort claims are different; the Federal Tort Claims Act provides

the exclusive avenue for relief where it applies. See 28 U.S.C.

s 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994).

existence, it is the duty of the courts, absent a clearly

expressed congressional intention to the contrary, to regard

each as effective." Morton v. Mancari, 417 U.S. 535, 551

(1974). The judgment of the district court is reversed and

the case is remanded for further proceedings consistent with

this opinion.

So ordered.