National Credit Union Administration Board v. RBS Securities, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL CREDIT UNION No. 13-56620

ADMINISTRATION BOARD, as

Liquidating Agent of Western D.C. No.

Corporate Federal Credit Union, 2:11-cv-05887-

Plaintiff-Appellant, GW-JEM

v.

OPINION

RBS SECURITIES, INC., FKA RBS

Greenwich Capital Markets, Inc.,

Defendant,

and

NOMURA HOME EQUITY LOAN, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted December 8, 2015

Pasadena, California

Filed August 15, 2016

2 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

Before: Dorothy W. Nelson, Stephen Reinhardt,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge D.W. Nelson

SUMMARY*

Securities

The panel vacated the district court’s judgment dismissing

as time-barred claims brought under the Securities Act of

1933.

The National Credit Union Administration Board

(NCUA), liquidating agent for a failed credit union, sued

defendants for making false and misleading statements in

their offerings of residential mortgage-backed securities

purchased by the credit union.

The “Extender Statute,” 12 U.S.C. § 1787(b)(14), part of

the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989, establishes the applicable statute

of limitations with regard to any action brought by the NCUA

as conservator or liquidating agent for a failing or failed

credit union. The panel held that the Extender Statute

supplants the statute of repose contained within 15 U.S.C.

§ 77m, which provides that a private investor pursuing a

claim under § 11 or § 12(a)(2) of the Securities Act must

bring suit within three years after the security was offered or

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 3

sold. Joining other circuits, the panel held that the Extender

Statute replaces all preexisting time limitations, whether

styled as a statute of limitations or a statute of repose, in any

action by the NCUA as conservator or liquidating agent. The

panel also held that the Extender Statute’s scope includes

actions such as this one, in which the NCUA asserted

statutory claims rather than common law tort or contract

claims. The panel distinguished CTS Corp. v. Waldburger,

134 S. Ct. 2175 (2014), which addressed a preemption

provision of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.

The panel held that the NCUA’s claims were timely filed.

It remanded the case for further proceedings consistent with

its opinion.

COUNSEL

David C. Frederick (argued), Wan J. Kim, and Gregory G.

Rapawy, Kellogg, Huber, Hansen, Todd, Evans & Figel,

PLLC, Washington, D.C.; George A. Zelcs, Korein Tillery

LLC, Chicago, Illinois; Michael J. McKenna and John K.

Ianno, National Credit Union Administration, Alexandria,

Virginia; for Plaintiff-Appellant.

Matthew S. Hellman (argued), Barbara S. Steiner and Barry

Levenstam, Jenner & Block LLP, Chicago, Illinois, for

Defendant-Appellee Nomura Home Equity Loan, Inc.

Marc T.G. Dworsky and David H. Fry, Munger, Tolles &

Olson LLP, San Francisco, California, for Defendant-

Appellee Wachovia Mortgage Loan Trust, LLC.

4 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

OPINION

D.W. NELSON, Senior Circuit Judge:

This case concerns the National Credit Union

Administration Board’s (NCUA) liquidation of Western

Corporate Federal Credit Union (Wescorp). The NCUA sued

Wachovia Mortgage Loan Trust, LLC (Wachovia) and

Nomura Home Equity Loan, Inc. (Nomura) for making false

and misleading statements in their offerings of residential

mortgage-backed securities (RMBS) purchased by Wescorp.

The NCUA brought these claims under the Securities Act of

1933 (1933 Act). The district court dismissed the NCUA’s

claims, ruling that 12 U.S.C. § 1787(b)(14) (the Extender

Statute) did not supplant the statute of repose contained

within 15 U.S.C. § 77m, and therefore that the NCUA’s

claims were time-barred. We VACATE the district court’s

judgment and REMAND the case for further proceedings

consistent with this opinion.

BACKGROUND

The NCUA is an independent federal agency responsible

for chartering and regulating federal credit unions, regulating

federally insured state-chartered credit unions, and

administering the Share Insurance Fund (the Fund). See

12 U.S.C. §§ 1752a(a), 1754, 1781, 1783–1784. The Fund

insures the deposits of nearly 100 million account holders. It

is financed through deposits by and assessments against

insured credit unions and backed by the full faith and credit

of the United States. See id. § 1782(c).

When an insured credit union is in danger of failing, the

NCUA has the authority to step in as a conservator to

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 5

preserve the credit union’s assets and to protect the Fund. See

id. §§ 1766, 1786(h). Upon finding that a credit union is

bankrupt or insolvent, the NCUA closes the credit union for

liquidation and appoints itself as liquidating agent. Id.

§ 1787.

Before its failure, Wescorp was the second largest

corporate credit union in the United States. It offered a

variety of financial services to other credit unions. Like

many financial institutions before the collapse of the housing

market, Wescorp invested in RMBS, which are securities

backed by thousands of individual residential mortgages.

And, like many such financial institutions, Wescorp failed

after suffering heavy losses on its RMBS investments.

Pursuant to its statutory authority, the NCUA placed

Wescorp into conservatorship, and later into liquidation.

After assuming control of Wescorp, the NCUA determined

that offering documents for RMBS issued by Wachovia and

Nomura and purchased by Wescorp in 2006 and 2007

contained certain statements and omissions that the NCUA

believed materially misrepresented the quality of the

residential loans underlying the RMBS. The NCUA sued

Wachovia and Nomura for violations of § 11 and § 12(a)(2)

of the 1933 Act, ch. 38, 48 Stat. 74 (codified as amended at

15 U.S.C. § 77a et seq.).1

Pursuant to § 13 of the 1933 Act, a private investor

pursuing a claim under § 11 or § 12(a)(2) ordinarily must

1

The NCUA and Wachovia entered into a settlement agreement while

the NCUA’s appeal was pending. On October 28, 2015, this Court

granted their stipulated motion to dismiss the NCUA’s claims against

Wachovia. Case No. 13-56620 Dkt. No. 75.

6 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

bring suit: (1) within one year after discovering a violation,

and (2) within three years after the security was offered or

sold. 15 U.S.C. § 77m. The Supreme Court has explained

that the second requirement is a statute of repose. See Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.

350, 363 (1991). Unlike a statute of limitations, which begins

to run when a claim accrues and may be subject to equitable

tolling, “[a] statute of repose bars any suit that is brought

after a specified time since the defended acted . . . , even if

this period ends before the plaintiff has suffered a resulting

injury.” CTS Corp. v. Waldburger, 143 S. Ct. 2175, 2182

(2014). A statute of repose is “therefore equivalent to a

cutoff, in essence an absolute bar on a defendant’s temporal

liability.” Id. at 2183 (internal citations and quotation marks

omitted).

However, in response to the Savings and Loan Crisis,

Congress enacted the Financial Institutions Reform,

Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L.

101–73, 103 Stat. 183. FIRREA contains special provisions

concerning the failure of financial institutions. Among other

things, it provides that the NCUA may be appointed as a

conservator or liquidating agent for failing and failed credit

unions, and that upon such appointment, the NCUA gains the

right to pursue any claims the credit unions had. See

generally 12 U.S.C. § 1787.

Additionally, FIRREA contains the Extender Statute,

which establishes “the applicable statute of limitations with

regard to any action brought by [the NCUA] as conservator

or liquidating agent.” 12 U.S.C. § 1787(b)(14). The

Extender Statute requires that contract claims be brought

within the longer of: (1) the 6-year period beginning on the

date the claim accrues; or (2) the period applicable under

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 7

State law. Id. § 1787(b)(14)(A). It requires that tort claims

be brought within the longer of: (1) the 3-year period

beginning on the date the claim accrues; or (2) the period

applicable under State law. Id. For purposes of these

provisions, a claim accrues the later of: (1) the date of

appointment of the NCUA as conservator or liquidating

agent; or (2) the date on which a cause of action accrues. Id.

§ 1787(b)(14)(B).

The NCUA placed Wescorp into conservatorship on

March 20, 2009. It filed its original complaint less than three

years later, on July 18, 2011. Nevertheless, the district court

held the NCUA’s claims were not timely filed. Instead, the

district court interpreted the Extender Statute narrowly,

finding that it supplanted only the one-year “statute of

limitations” and not the three-year “statute of repose”

contained in § 13 of the 1933 Act. Because the NCUA did

not file suit within three years after the securities at issue

were offered or sold (as the statute of repose ordinarily

requires), the district court dismissed the NCUA’s claims

against Wachovia and Nomura as time-barred.

We disagree with the district court’s interpretation of the

Extender Statute. We hold that the Extender Statute replaces

all preexisting time limitations—whether styled as a statute

of limitations or a statute of repose—in any action by the

NCUA as conservator or liquidating agent. We also hold that

the Extender Statute’s scope—“any action brought by the

[NCUA]”—includes actions such as this one, in which the

NCUA asserts statutory claims rather than common law tort

or contract claims. In sum, we conclude that the NCUA’s

claims were timely filed.

8 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

STANDARD OF REVIEW

We review a dismissal on statute of limitations grounds

de novo. Papenthien v. Papenthien, 120 F.3d 1025, 1027 (9th

Cir. 1997).

ANALYSIS

I. The District Court Erred in Holding that the

Extender Statute Does Not Supplant the 1933 Act’s

Statute of Repose.

a. FIRREA applies to statutes of repose.

We join all appellate courts to have considered the

question of whether an extender statute like the one in

FIRREA applies to both statutes of limitations and to statutes

of repose and find that it does.2 Indeed, the Extender Statute

2

The Tenth Circuit Court of Appeals held, as we do, that the Extender

Statute supplanted § 13’s statute of repose. Nat’l Credit Union Admin. Bd.

v. Nomura Home Equity Loan, Inc., 727 F.3d 1246 (10th Cir. 2013) cert.

granted, judgment vacated, 134 S. Ct. 2818 (2014). It affirmed its holding

on remand. Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan,

Inc. (Nomura II), 764 F.3d 1199 (10th Cir. 2014) cert. denied, 135 S. Ct.

949 (2015).

The Second Circuit Court of Appeals held that 12 U.S.C.

§ 4617(b)(12), the analogous extender statute for actions by the Federal

Housing Finance Agency, displaces § 13’s statute of repose. Fed. Hous.

Fin. Agency v. UBS Americas Inc., 712 F.3d 136 (2d Cir. 2013).

The Fifth Circuit Court of Appeals and the Nevada Supreme Court

each held that 12 U.S.C. § 1821(d)(14), the analogous extender statute for

actions by the Federal Deposit Insurance Corporation supplants all other

time limits. Fed. Deposit Ins. Corp. v. RBS Sec. Inc., 798 F.3d 244 (5th

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 9

establishes a universal time limit for all actions by the NCUA

as conservator or liquidating agent. Both textual and

contextual analyses of the statute confirm this conclusion, and

the Supreme Court’s decision in CTS Corp. v. Waldburger,

134 S. Ct. 2175 (2014) does not support Appellees’

arguments to the contrary.

1. By its plain meaning, the Extender Statute

displaces all other time limitations.

The “first step in interpreting a statute is to determine

whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.”

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). In this

case, it does. And that plain and unambiguous meaning

demonstrates that the Extender Statute applies not only to the

1933 Act’s statute of limitations, but also to its statute of

repose.

The Extender Statute provides:

(A) In general

Notwithstanding any provision of any

contract, the applicable statute of limitations

with regard to any action brought by the

[NCUA] as conservator or liquidating agent

shall be–

(i) in the case of any contract claim, the

longer of–

Cir. 2015) cert. denied, 136 S. Ct. 1492 (2016); Fed. Deposit Ins. Corp.

v. Rhodes, 336 P.3d 961 (Nev. 2014).

10 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

(I) the 6-year period beginning on the

date the claim accrues; or

(II) the period applicable under State

law; and

(ii) in the case of any tort claim, the

longer of–

(I) the 3-year period beginning on the

date the claim accrues; or

(II) the period applicable under State

law.

(B) Determination of the date on which a

claim accrues

For purposes of subparagraph (A), the date on

which the statute of limitations begins to run

on any claim described in such subparagraph

shall be the later of–

(i) the date of the appointment of the

[NCUA] as conservator or liquidating

agent; or

(ii) the date on which the cause of action

accrues.

12 U.S.C. § 1787(b)(14). The Extender Statute begins by

setting forth “the applicable statute of limitations with regard

to any action brought by the [NCUA] as conservator or

liquidating agent.” Id. § 1784(b)(14)(A) (emphasis added).

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 11

It further provides that the limitations period “shall be” six

years for contract cases, three years for tort cases, or in either

case, the respective applicable period under State law if that

period is longer. Id.

By expressly stating that “the” statute of limitations for

“any action” brought by the NCUA as conservator or

liquidating agent “shall be” as specified, Congress made clear

that no other limitations period applies to the NCUA’s claims.

Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan,

Inc., 764 F.3d 1199, 1226 (10th Cir. 2014) (Nomura II); Fed.

Housing Finance Agency v. UBS Americas Inc., 712 F.3d

136, 141–42 (2d Cir. 2013). It is clear to us that the Extender

Statute’s plain meaning “indicates that it . . . supplants all

other time limits.” Nomura II, 764 F.3d at 1226; see also

Fed. Deposit Ins. Corp. v. RBS Securities Inc., 798 F.3d 244,

254 (5th Cir. 2015) (“Interpreting the statute as excluding

repose periods from its ambit would circumvent that

mandatory language by providing the FDIC with less than

three years from the date of its appointment as receiver to

bring claims.”).

2. Various tools of statutory construction

further support our determination that the

Extender Statute displaces the 1933 Act’s

statute of repose.

Numerous tools of statutory construction confirm our

conclusion. The statutory context and FIRREA’s legislative

history clearly indicate that the Extender Statute displaces the

1933 Act’s statute of repose.

First, when viewed in the context of FIRREA as a whole,

it is apparent that the Extender Statute displaces the 1933

12 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

Act’s statute of repose. Specifically, FIRREA refers to

“statute of limitations” or “statute of limitation” in six

provisions including the Extender Statute. 12 U.S.C.

§§ 1787(b)(5)(F)(i), (b)(6)(B), (b)(8)(D), (b)(8)(E), (b)(14),

(d)(4). Tellingly, three of the six uses refer to limitations

periods better characterized as statutes of repose. Those three

provisions, which set deadlines for appealing NCUA’s denial

of a claim, employ the term “statutes of limitations” but they

do not provide for tolling—the hallmark of statutes of repose.

12 U.S.C. §§ 1787(b)(6)(B) (“the claimant shall have no

further rights or remedies” after 60 days), (b)(8)(D) (“the

claimant shall have no further rights or remedies” after 30

days), (d)(4) (establishing a fixed time limit for appeal that

begins to run on the date of the decision being challenged).

This suggests that FIRREA uses the term “statutes of

limitations” broadly, to include what are technically statutes

of repose. See Nomura II, 764 F.3d at 1230–31 (explaining

that the absence of a provision for accrual or tolling in these

three sections suggests that FIRREA uses “statute of

limitations” broadly). It follows that the term should be given

the same broad meaning when it is used in other places in

FIRREA, including in the Extender Statute. And giving the

term this broad meaning makes it clear that the Extender

Statute displaces any preexisting time limitation in any action

by the NCUA as conservator or liquidating agent.

FIRREA’s legislative history also supports our

conclusion. When submitting FIRREA’s conference report

to the Senate, FIRREA’s sponsor stated that the Extender

Statute should be “construed to maximize potential recoveries

by the Federal Government by preserving to the greatest

extent permissible by law claims that would otherwise have

been lost due to the expiration of hitherto applicable

limitations period.” 135 Cong. Rec. S10205 (Daily Ed. Aug.

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 13

4, 1989) (statement of Senator Donald W. Riegle, Jr., then-

Chairman of the Committee on Banking, Housing, and Urban

Affairs and sponsor of FIRREA in the Senate). Indeed,

FIRREA’s stated purposes were to “strengthen the

enforcement powers of Federal regulators of depository

institutions,” FIRREA, Pub.L. No. 101–73, 103 Stat. 183

§ 101(9), and to “strengthen the civil sanctions and criminal

penalties for defrauding or otherwise damaging depository

institutions and their depositors,” id. § 101(10). We have

recognized FIRREA reflects a “policy of protecting the

government’s right to recovery.” Fed. Deposit Ins. Corp. v.

N.H. Ins. Co., 953 F.2d 478, 486–87 (9th Cir. 1991). This

policy is best advanced by interpreting the Extender Statute

to supplant the 1933 Act’s statute of repose. Thus, we agree

with the Tenth Circuit Court of Appeals that the legislative

history clearly “demonstrates Congress meant any ambiguity

in the term ‘statute of limitations’ to be construed broadly.”

Nomura II, 764 F.3d at 1217 (noting also that “[i]t strains

common sense to think Congress would have saddled the

NCUA with having to comply with multiple federal and state

statutes of repose”).

Arguing otherwise, Appellees point to the Extender

Statute’s instruction to begin the limitations period on the

date of a claim’s “accrual” as a sign that the new limitations

period must not displace statutes of repose. This is so,

according to Appellees, because the concept of “accrual” is

irrelevant to a statute of repose, which is generally triggered

by the defendant’s act. Appellees’ argument confuses the

statute’s use of accrual. The references to accrual simply

reflect that the new timeframe for the NCUA to assert claims

begins only after a claim accrues. RBS Securities Inc.,

798 F.3d at 254; Nomura II, 764 F.3d at 1229. Those

references do not define the type of limitations period that the

14 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

Extender Statute replaces. They pertain only to the limitation

period that the Extender Statute creates. Thus, the use of this

term has no bearing on whether the Extender Statute

supplants the 1933 Act’s statute of repose.

3. The Supreme Court’s decision in CTS Corp.

v. Waldburger does not support Appellees’

arguments.

Appellees’ heavy reliance on the Supreme Court’s

decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014)

is misplaced. The statute at issue in CTS fundamentally

differs from the Extender Statute in numerous ways.

Accordingly, the Supreme Court’s analysis of that statute

does not compel a contrary conclusion to the one we reach

here.

In CTS Corp., the Supreme Court considered the effect of

42 U.S.C. § 9658, an amended provision of the

Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (CERCLA), that by its terms preempted

“State statutes of limitations.” The Court concluded that the

statute preempted only statutes of limitations, not statutes of

repose.3 134 S. Ct. at 2180. In reaching this conclusion, the Court

3

CERCLA § 9658 reads in pertinent part as follows:

(a) State statutes of limitations for hazardous substance

cases

(1) Exception to State statutes

In the case of any action brought under State

law for personal injury, or property damages,

which are caused or contributed to by

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 15

exposure to any hazardous substance, or

pollutant or contaminant, released into the

environment from a facility, if the applicable

limitations period for such action (as specified

in the State statute of limitations or under

common law) provides a commencement date

which is earlier than the federally required

commencement date, such period shall

commence at the federally required

commencement date in lieu of the date

specified in such State statute.

(2) State law generally applicable

Except as provided in paragraph (1), the statute of limitations established

under State law shall apply in all actions brought under State law for

personal injury, or property damages, which are caused or contributed to

by exposure to any hazardous substance, or pollutant or contaminant,

released into the environment from a facility.

...

(b) Definitions

...

(2) Applicable limitations period

The term “applicable limitations period”

means the period specified in a statute of

limitations during which a civil action referred

to in subsection (a)(1) of this section may be

brought.

(3) Commencement date

The term “commencement date” means the date

specified in a statute of limitations as the beginning

of the applicable limitations period.

16 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

first discussed the differences between statutes of limitations

and statutes of repose, noting that a “statute of limitations

creates ‘a time limit for suing in a civil case based on the date

when the claim accrued.’” Id. at 2182 (quoting BLACK’S LAW

DICTIONARY 1546 (9th ed. 2009)). In contrast, a statute of

(4) Federally required commencement date

(A) In general

Except as provided in subparagraph (B),

the te r m “f e d e r a l l y r e q u i r e d

commencement date” means the date the

plaintiff knew (or reasonably should have

known) that the personal injury or

property damages referred to in

subsection (a)(1) of this section were

caused or contributed to by the hazardous

substance or pollutant or contaminant

concerned.

(B) Special rules

In the case of a minor or incompetent

plaintiff, the term “federally required

commencement date” means the later of

the date referred to in subparagraph (A)

or the following:

(i) In the case of a minor, the date on

which the minor reaches the age of

majority, as determined by State law,

or has a legal representative

appointed.

(ii) In the case of an incompetent

individual, the date on which such

individual becomes competent or has

had a legal representative appointed.

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 17

repose, “puts an outer limit on the right to bring a civil

action.” Id. The Court explained that a statute of limitation

therefore encourages plaintiffs to pursue their known claims

diligently whereas a statute of repose reflects a legislative

judgment that defendants should be free from any liability

after the passage of a certain amount of time. Id. at 2183.

In determining that § 9658 did not apply to statutes of

repose, the Court pointed to several things. First, it noted that

§ 9658 provides only a limited exception to state statutes of

limitations. This exception concerns only the commencement

date of the limitations period. Id. at 2185. The state statutes

continue to provide the limitations period itself. “Under this

structure,” the Court stated, “state law is not pre-empted

unless it fits into the precise terms of the exception.” Id.

Second, the Court identified a 1982 Study Group Report

recommending that in the same discovery rule later embodied

in § 9658, Congress repeal state statutes of limitations as well

as state statutes of repose. Id. at 2186. The Court reasoned

that if Congress decided not to mention statutes of repose

despite this clear indication that it considered doing so, then

Congress must have intended to omit statutes of repose from

§ 9658’s scope. Id. The Court then noted the text of the

statute “describing the covered [limitations] period in the

singular[,]” which the Court explained “would be an

awkward way to mandate the pre-emption of two different

time periods with two different purposes.” Id. at 2186–87.

FIRREA’s Extender Statute is “fundamentally different”

from § 9658. Nomura II, 764 F.3d at 1208.4 Whereas the

4

We note that in light of its holding in CTS Corp., the Supreme Court

vacated the Tenth Circuit’s original holding that the NCUA’s extender

18 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

Extender Statute sets entirely new time limits for claims

brought by the NCUA, § 9658 establishes only a new

commencement date for the limitations period set by state

law. CTS Corp., 134 S. Ct. at 2185. Thus, while § 9658 is

properly characterized as a limited exception to the otherwise

applicable state law, the Extender Statute provides the

exclusive limitations framework for any action by the NCUA

as conservator or liquidating agent, leaving no room for any

state limitations period that might otherwise apply.

Moreover, unlike in CTS, there is no evidence in this case

that Congress considered separately addressing statutes of

repose, and then declined to do so. In contrast to the

enactment of § 9658, where the existence of the 1982 Study

Group Report reflected that Congress intentionally limited the

scope of preemption to state statutes of limitations, there is

“no evidence Congress distinguished between statutes of

limitations and statutes of repose” when it enacted FIRREA.

Nomura II, 764 F.3d at 1215. Absent such evidence, the

“limitations period,” viewed in isolation, provides little

insight into Congress’s intent. Indeed, it is well understood

that “the term ‘statutes of limitations’ is sometimes used in a

less formal way . . . [to] refer to any provision restricting the

time in which a plaintiff must bring suit,” and that “Congress

has used the term ‘statute of limitations’ when enacting

statutes of repose.” CTS Corp., 134 S. Ct. at 2185 (citing

statute displaced the 1933 Act’s statute of repose. Nomura Home Equity

Loan, Inc. v. Nat'l Credit Union Admin. Bd., 134 S. Ct. 2818 (2014).

On remand, the Tenth Circuit reaffirmed its conclusion, finding little

difficulty distinguishing § 9658 from the NCUA’s extender statute.

Nomura II, 764 F.3d at 1208. The Supreme Court denied certiorari when

the case returned from the Tenth Circuit. Nomura Home Equity Loan, Inc.

v. Nat'l Credit Union Admin. Bd., 135 S. Ct. 949 (2015).

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 19

15 U.S.C. § 78u-6(h)(1)(B)(iii)(I)(aa) (2012 ed.) (placing a

statute of repose in a section entitled “Statute of

limitations”)).

Finally, unlike § 9658, the Extender Statute uses the

singular word “period” not to refer to the state law

timeframe(s) being replaced, but rather to refer to the new

timeframe being established. That new exclusive timeframe

adopts “the period applicable under State law” only when that

period is longer than the period otherwise prescribed. Thus,

the Extender Statute’s use of the word “period” by no means

operates to exclude statutes of repose from its scope.

In sum, we reject Appellees’ arguments that the Supreme

Court’s holding in CTS Corp. requires a contrary conclusion

to the one we reach here. We hold that in actions by the

NCUA as conservator or liquidating agent, the Extender

Statute displaces all preexisting time limitations, including

the 1933 Act’s statute of repose.

b. The Extender Statute applies to statutory

claims.

We now turn to whether the Extender Statute applies to

statutory claims, and not merely to common law claims. We

conclude that it does.

“The preeminent canon of statutory interpretation requires

us to ‘presume that [the] legislature says in a statute what it

means and means in a statute what it says there.’” BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (quoting

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54

(1992)). As our Court has long held, “[i]f the statutory

language is unambiguous and the statutory scheme is

20 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

coherent and consistent, judicial inquiry must cease.”

Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2011)

(internal quotation marks omitted).

The text of the Extender Statute is unambiguous. The

Extender Statute applies to “any action brought by the

[NCUA]” as conservator or liquidating agent, regardless of

whether the action is state or federal, or whether the NCUA

asserts statutory or common law claims. Because the

Extender Statute applies to “any action,” it is improper to

read its description of the six-year limitations of contract

claims and three-year limitations of tort claims as limiting its

scope to only common law contract and tort claims. Instead,

the natural reading of the Extender Statute is that it also

applies to statutory claims.

Indeed, this natural reading of the Statute’s text was

adopted by the Second Circuit Court of Appeals in holding

that a materially similar statute in the Housing and Economic

Recovery Act was applicable to actions in which the Federal

Housing Finance Agency (FHFA) asserted both state and

federal claims. Federal Housing Finance Agency v. UBS

Americas Inc., 712 F.3d 136 (2d Cir. 2013). The Second

Circuit found that “[b]y explicitly stating that ‘the’ statute of

limitations for ‘any action’ brought by FHFA as conservator

‘shall be’ as specified in § 4617(b)(12), Congress clearly

provided that the extender statute [applied].” Id. at 141–42.

(emphasis in original).

Because the statute is unambiguous, our inquiry need not

go any further. Miranda, 684 F.3d at 849. But if there were

any remaining doubt, the legislative history confirms our

reading. FIRREA was enacted to “significantly increase the

amount of money that can be recovered by the Federal

NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 21

Government through litigation, and help ensure the

accountability of the persons responsible for the massive

losses the Government has suffered through the failures of

insured institutions.” 135 Cong. Rec. S10205 (daily ed. Aug.

4, 1989) (statement of Senator Riegle)). Indeed, the Supreme

Court has noted that “[a]s a result [of the financial crisis of

the 1980s], Congress enacted . . . [FIRREA] . . . with the

objects of preventing the collapse of the industry, attacking

the root causes of the crisis, and restoring public confidence.”

United States v. Winstar Corp., 518 U.S. 839, 856 (1996).

We find that FIRREA’s legislative history and purpose

clearly reflect that Congress intended the Extender Statute to

apply to statutory claims. See Nomura II, 764 F.3d at

1238–39 (concluding that restricting the Statute to common

law claims, “would flatly contradict FIRREA’s explicit

purpose”).5

We find unconvincing Appellees’ argument that allowing

the Extender Statute to supply the applicable statute of

limitations would result in a repeal of a portion of the 1933

Act. When enacting FIRREA, Congress carved out a specific

set of rules that applies only to agencies like the NCUA when

5

Though the Tenth Circuit found that the Extender Statute’s text was

ambiguous as to whether it was limited to common law claims, it

ultimately held that the Statute did apply to statutory claims in part

because of FIRREA’s legislative purpose. Nomura II, 764 F.3d at

1236–42.

Additionally, it found that an analysis of 28 U.S.C.A. § 2415, the

default federal statute of limitations that Congress used as a model when

drafting the Extender Statute, also demonstrated that Congress intended

for FIRREA to apply to statutory claims. Id. at 1239. The Tenth Circuit

held, and we agree, that because § 2415 had been used by courts to apply

to statutory claims, this is further evidence that the Statute should not be

limited. Id. at 1239, 1241.

22 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN

they pursue claims on behalf of failing or failed financial

institutions. Thus, applying the Extender Statute results in a

narrow exception to the 1933 Act for federal agencies in a

limited capacity, and not for any other litigants who file suit.

There is no implicit repeal.

Given the plain text of the Extender Statute and the

legislative history of FIRREA, we hold that the Extender

Statute applies to statutory claims, including those brought

pursuant the 1933 Act that the NCUA asserts in this action.

CONCLUSION

The district court erred in holding that FIRREA’s

Extender Statute does not displace the 1933 Act’s statute of

repose in actions by the NCUA as conservator or liquidating

agent. We therefore VACATE the district court’s judgment

and REMAND the case for further proceedings consistent

with this opinion.