Federal Deposit Insurance v. Meyerland Co.

United States Court of Appeals,

Fifth Circuit.

No. 89–6118.

IN THE MATTER OF: MEYERLAND CO., and WILLIAM M. ADKINSON, Debtors,

FEDERAL DEPOSIT INSURANCE CORP. as Manager of the FSLIC Resolution Fund as

Receiver for Continental Savings Association, Appellant,

v.

MEYERLAND CO., and William ADKINSON, Appellees.

May 13, 1992.

Appeal from the United States District Court For the Southern District of Texas.

Before POLITZ, Chief Judge, REYNALDO G. GARZO, KING, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, SMITH, DUHÉ, WIENER, EMILIO M. GARZA, and DeMOSS,

Circuit Judges.1

DUHÉ, Circuit Judge:

Proceedings Below and Appellate Jurisdiction

Meyerland Co. and William M. Adkinson sued Continental Savings Association

("Continental") for, among other things, usury and fraud in state court. Continental counterclaimed

for fraud and breach of contract. The trial court awarded Continental $30,031,089.99 and Adkinson

$1,124,109.59 in damages. Meyerland and Adkinson appealed.

After the appeal was filed, the Federal Home Loan Bank Board declared Continental insolvent

and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) as receiver. The FSLIC

removed to federal district court which remanded on April 21, 1989.

On August 9, 1989, the Financial Institutions Reform, Recovery and Enforcement Act

(FIRREA), Pub.L. 101–73, 103 Stat. 183, 383 was enacted. The Federal Deposit Insurance

Corporation (FDIC) succeeded the FSLIC as the receiver of Continental and the FDIC then removed

1

Judges Edith H. Jones and Rhesa H. Barksdale are recused.

this case on September 7, 1989 under § 209[4] of FIRREA (12 U.S.C. § 1819(b)(2)(B)).2 The

district court again remanded and awarded the appellees $2,500 in sanctions.

The FDIC appeals. Although remand orders are generally not appealable, 12 U.S.C. §

1819(b)(2)(C) authorizes an appeal in this case. This appeal presents two issues: (1) Whether 12

U.S.C. § 1819(b)(2) authorizes the FDIC to remove a state court appellate proceeding; and (2)

Whether the district court erred in awarding sanctions.

I. Removal Power Under FIRREA

Congress enacted FIRREA, a broad revision in federal banking law, in response to the recent

and ongoing savings and loan crisis. See Meliezer v. RTC, 952 F.2d 879, 881 (5th Cir.1992);

Smallwood v. OTS, 925 F.2d 894, 898 (6th Cir.1991). One of the way s FIRREA addresses the

problems facing this nation's thrift institutions is through "provisions which expand, enhance and

clarify enforcement powers of the financial institution regulatory agencies." H.Rep. No. 101–54(I),

101st Cong., 1st Sess. 291, 311, reprinted in 1989 U.S.Code Cong. & Admin.News 86, 107.

Specifically, FIRREA greatly expands the FDIC's role in regulating and supervising such institutions.

Id. at 310–11, reprinted in 1989 U.S.Code Cong. & Admin.News at 106–07. See also Note, The

FDIC's Enhanced Powers Over Savings Associations: Does FIRREA Make It "SAIF"?, 59

Ford.L.Rev. S381, S382 (1991).

This case requires us to examine the extent of the FDIC's powers under FIRREA. At issue

are jurisdictional and removal provisions giving the FDIC broad power to gain access to federal

courts in actions to which it is a party pursuant to FIRREA. The provisions relating to removal,

2

Although the FIRREA was enacted after the current proceeding was initiated, it is clear that

the FDIC may utilize it. See Turboff v. Merrill Lynch, Pierce, Fenner, & Smith, 867 F.2d 1518,

1521 (5th Cir.1989). ("When Congress adopts statutory changes while a suit is pending, the

effect of which is not to eliminate a substantive right but rather to change the tribunal which will

hear the case, those changes—barring specifically expressed intent to the contrary—will have

immediate effect.") (citing Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409

(1916)); and In re Resolution Trust Corp., 888 F.2d 57, 58 (8th Cir.1989).

found in 12 U.S.C. § 1819(b)(2), read as follows:

(A) In general

Except as provided in subparagraph (D), all suits of a civil nature at common law or in equity

to which the Corporation, in any capacity, is a party shall be deemed to arise under the laws

of the United States.

(B) Removal

Except as provided in subparagraph (D), the Corporation may, without bond or security,

remove any such action, suit, or proceeding from a state court to the appropriate United

States district court. (emphasis supplied).3

The power conferred by FIRREA to invoke federal jurisdiction and to remove from state

court is substantial. See Carrollton–Farmers Branch Independent School District v. Johnson &

Cravens, 889 F.2d 571, 572 (5th Cir.1989); Triland & Holdings & Co. v. Sunbelt Service Corp., 884

F.2d 205, 207 (5th Cir.1989). See also Jameson v. FDIC, 931 F.2d 290, 291 (5th Cir.1991)

(FIRREA extends FDIC's jurisdiction to include persons no longer affiliated with insured institutions);

FDIC v. Griffin, 935 F.2d 691, 696 (5th Cir.1991) cert. denied, ––– U.S. ––––, 112 S.Ct. 1163, 117

L.Ed.2d 410 (1992) (allowing federal jurisdiction even when FDIC has been voluntarily dismissed

as a party). Access to federal courts in all actions to which it is a party allows the FDIC to develop

and rely on a national and uniform body of law, consistent with eliminating the problems identified

by Congress in having less rigorous state standards coexisting with federal ones.4 See Smallwood v.

3

12 U.S.C. § 1819(b)(2)(D), which relates to situations in which state, as opposed to federal,

authorities appoint the FDIC as receiver, which involve only a state depository insurance system,

and which require only the interpretation of state law, does not apply to this case.

While this matter was pending before us, § (b)(2)(B) was amended to add at the

end thereof the following: "before the end of the 90–day period beginning on the date the

action, suit, or proceeding is filed against the Corporation or the Corporation is

substituted as a party."

4

The House Report on FIRREA explained the problem with having federal and state

regulatory systems simultaneously supervising thrift institutions: "In addition to having greater

powers, many state-chartered thrifts found a far less rigorous regulatory and supervisory

environment at the state level ... As long as the federal government was responsible for picking

up the tab for a failed state-chartered thrift, there was no great incentive for many state

legislatures to deny the sweeping demands for additional investment powers made by the thrift

industry. The results were tragic. Seventy percent of all FSLIC expenditures during 1988 went

to pay for problems created by high-risk, ill-supervised, state-chartered thrifts in California and

Office of Thrift Supervision, 925 F.2d at 898 ("We read many portions of the FIRREA as establishing

the primacy of the Federal interest as regards the solvency and viability of the Federal deposit

insurance system.").

In the case before us, first FSLIC and then the FDIC sought removal from state to federal

court, FSLIC under 12 U.S.C. § 1730(k)(1) (repealed by FIRREA) and the FDIC under 12 U.S.C.

§ 1819(b)(2)(B), after a state court judgment had been entered, without seeking relief from judgment

under Fed.R.Civ.P. 60, and while the case was on appeal to the appropriate state appellate court. In

each case, the federal district court remanded to state court, concluding that neither FIRREA nor 28

U.S.C. §§ 1441–51, the general removal statutes, authorized removal at this stage of the proceedings.

Although it is not clear whether the general removal statutes permit appellate removal,5 the

dissent relies upon the rule that federal district courts lack jurisdiction to review final state court

judgments to support their position that § 1819 does not permit it. Specifically, they rely on District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d

206 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

Their reliance is misplaced. Under the Rooker–Feldman line of cases, federal statute defines "final

state court judgments" as those "rendered by the highest court of a state in which a decision could

Texas. Those same two states absorbed 54 percent of FSLIC expenditures in 1987." H.Rep. No.

101–54(I), 101st Cong., 1st Sess. at 297, reprinted in 1989 U.S.Code Cong. & Admin.News at

93.

5

We do not decide whether this type of removal would be proper under 28 U.S.C. § 1441.

First, the FDIC could not remove the instant case under § 1441. The dispute hinges on state law

and, thus, there is no federal question jurisdiction. Second, it is uncertain whether the FDIC may

utilize § 1441 to effectuate removal in any case, not just the present one. In FDIC v. Sumner

Financial Corp., 602 F.2d 670 (5th Cir.1979) we held that the predecessor statute to 12 U.S.C. §

1819(b)(2) was a complete jurisdictional scheme and that both original and removal jurisdiction

over the FDIC was proper only if the case fell within the ambit of § 1819. Id. at 677–80. See

also FDIC v. Elefant, 790 F.2d 661 (7th Cir.1986). It is not entirely clear, however, that Sumner

is still good law. In FSLIC v. Ticktin, 490 U.S. 82, 109 S.Ct. 1626, 104 L.Ed.2d 73 (1989) the

Supreme Court held that the statute granting jurisdiction over FSLIC, 12 U.S.C. § 1730(k)(1),

was not exclusive and did not preclude the exercise of jurisdiction under other grants of

jurisdiction. The FSLIC jurisdictional statute was very similar to the statutory predecessor to the

FDIC jurisdictional statute, and Ticktin, therefore, calls into question the result in Sumner.

be had." 28 U.S.C. § 1257(a). The judgment of the Texas state district court is not a "final"

judgment within this definition. Two higher courts within the state judiciary could hear appeals. See

Market St. Ry. Co. v. Railroad Commission of State of California, 324 U.S. 548, 551, 65 S.Ct. 770,

772, 89 L.Ed. 1171 (1945) (a state judgment is final (1) if it is an effective determination of litigation

in that it is not an interlocutory or intermediate judgment and (2) when it is subject to no further

review or correction in any other state tribunal).6

The FDIC directs us to the broad language of § 1819 in arguing that the statute authorizes

removal in this case. Under this reasoning, because the statute does not specifically prohibit appellate

removal, it authorizes it. Appellees, on the other hand, insist that the language is so broad that the

statute is silent on this issue and that the FDIC should not be able to remove cases at this stage of

state proceedings. To resolve this issue, we must look to the plain language and meaning of

FIRREA, the Constitutional authority of Congress to grant this sort of removal jurisdiction, and

whether there is any reason to think that Congress could not have intended this result.

A. Plain Meaning of the Statute.

As in any case requiring statutory construction, the High Court has instructed us to adhere

to the plain language of the law unless "literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters." Griffin v. Oceanic Contractors, Inc., 458

U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982). The Supreme Court recently

reaffirmed this standard in Demarest v. Manspeaker, which involved 28 U.S.C. § 1821. ––– U.S.

––––, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991). In Demarest, the Court said, "We do not believe that

6

Furthermore, the modern view of removal is that it is more closely akin to original than to

appellate jurisdiction because once the case is removed, it is treated as if it had commenced in

federal court. See Freeman v. Bee Machine Co., 319 U.S. 448, 452, rehearing denied, 320 U.S.

809, 64 S.Ct. 27, 88 L.Ed. 489 (1943), and Savell v. Southern Ry., 93 F.2d 377, 379 (5th

Cir.1937). The older approach to removal jurisdiction viewed removal as an appeal because the

proceeding did not commence in federal court. See, e.g., Barrow v. Hunton, 99 U.S. 80, 25 L.Ed.

407 (1879). Under the modern understanding, removing this case does not constitute the appeal

of a state court judgment to federal court.

this is one of those rare cases where t he application of the statute as written will produce a result

"demonstrably at odds with the intentions of its drafters.' " Id. 111 S.Ct. at 604. We agree that, on

its face, the language of 12 U.S.C. § 1819(b)(2)(B) allows removal at the procedural posture in which

this case comes to us.7 The statute states that the FDIC may "remove any such action, suit, or

proceeding from a state court to the appropriate United States district court" (emphasis supplied).

The statute's plain language is quite plain: Any action in a state court may be removed. This

language does not limit removable actions to those that have not yet reached a state trial court

judgment, nor does it limit removable actions to those that come to the federal courts from a specific

state court (i.e., from state trial, as opposed to appellate, court). Furthermore, the contrast between

the broad "a state court" and the specific "United States district court" within the same sentence

strongly suggests that the drafters intended the meaning urged by the FDIC.

Like the Eleventh Circuit, which considered this issue under § 1819(b)'s predecessor statute,

we can "discern no reason to confine the interpretation of "action [from a State court]' to actions that

have not reached judgment." In re Savers Federal Savings & Loan Assoc., 872 F.2d 963, 966 (11th

Cir.1989). In In re Savers a debtor sued a financial institution in state court claiming as here, breach

of contract and fraud and the institution counter claimed to recover on the debtor's note. After

judgment and after denial of post-trial motions for hearing, new trial, and remittitur, the FSLIC was

appointed conservator of the institution. It then filed notice of removal. The district court remanded

concluding that the case was completed in state court and that defendant was, in effect, seeking

appeal. The Eleventh Circuit grant ed mandamus and vacated the remand on the basis of §

1819(b)(2)(B).

7

The FDIC contends that the language of 12 U.S.C. § 1821(d)(13)(B) establishes its right to

remove appellate proceedings. This subsection states "In the event of any appealable judgment,

the Corporation as conservator or receiver shall have all the rights and remedies available to the

insured depository ... and the Corporation in its corporate capacity, including removal to Federal

court and all appellate rights." Although we agree that this case is removable, we cannot accept

this argument. While § 1821 makes it clear that the FDIC may remove a suit after judgment, it

does not clearly establish that the FDIC may remove a case which is on appeal.

The Eleventh Circuit framed the question as "whether after there has been a final judgment

by the state trial court, but when the period for appeal has not yet lapsed, a case ceased to be an

"action from a state court.' " 872 F.2d at 965–66. The court concluded that it did not and stated:

"Had Congress intended to limit the removal power of FSLIC to suits pending before a state trial

court, it could have explicitly stated as much, as it did in ... 12 U.S.C. § 632...." Id. at 966.

In the instant case, it is true, removal is sought from the state appellate court whereas in

Savers no appeal had yet been filed. The significant factor, however, is that state appellate

proceedings had not yet been exhausted when removal was effected. Accord Murray v. Ford Motor

Company, 770 F.2d 461, 463 (5th Cir.1985) (per curiam); Butner v. Neustadter, 324 F.2d 783 (9th

Cir.1963); Munsey v. Testworth Laboratories, Inc., 227 F.2d 902, 903 (6th Cir.1955) (per curiam).

In FDIC v. Yancey Camp Development, 889 F.2d 647, 648 (5th Ci r.1989), a case which was on

appeal, we allowed removal and the district court set aside a default judgment.

Therefore, unless Congress lacks the power under Article Three of the United States

Constitution to confer federal jurisdiction upon federal district courts in cases such as this one, or

unless Congress could not have intended to do so when it enacted FIRREA, the district court erred

in remanding this action to the state court.

B. Article III Power to Create Jurisdiction in Federal District Courts.

While it is black letter law that "Congress may not expand the jurisdiction of the federal courts

beyond the bounds established by the Constitution," Verlinden B.V. v. Central Bank of Nigeria, 461

U.S. 480, 491, 103 S.Ct. 1962, 1970, 76 L.Ed.2d 81 (1983), the power of Congress to authorize

removal of cases on appeal has been repeatedly affirmed. See Martin v. Hunter's Lessee, 14 U.S. (1

Wheat) 304, 349, 4 L.Ed. 97 (1816) ("Congress ... may authorize removal either before or after

judgment."); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L.Ed. 524 (1876); and Tennessee v. Davis, 100

U.S. 257, 269, 25 L.Ed. 648 (1880). Congress, however, has seldom chosen to exercise this power,8

and we must decide whether it has done so by enacting the FDIC removal statute.

C. The FDIC Removal Statute.

1. History.

Special considerations arise because § 1819 is a jurisdictional statute. Jurisdictional statutes

must be interpreted with an eye towards history.9 The opponents would have us believe that adopting

the FDIC's view of § 1819 thoughtlessly and improvidently pushes "arising under" jurisdiction into

a brave new world of expanded and uncontrollable growth, with no historical basis for this broadened

approach. A review of the history of federal jurisdiction reveals that this statute does not carve out

a new type of arising under jurisdiction never before seen. Rather, FIRREA returns us to an older

version of arising under jurisdiction that existed until the early part of this century.

In Osborn v. Bank of the United States, 22 U.S. (9 Wheat) 738, 822, 6 L.Ed. 204 (1824)

Justice Marshall expounded on the outer limits of Article Three jurisdiction: "when a question to

which the judicial power of the Union is extended by the constitution forms an ingredient of the

8

Congress enacted at least one statute authorizing post-judgment removal during the

Reconstruction era. See the Habeas Corpus Act of 1863, ch. 81, § 5, 12 Stat. 755, 757 ("And it

shall be lawful in any such action or prosecution ... after final judgment, for either party to remove

and transfer, by appeal, such case.")

9

Justice Frankfurter in Romero v. International Terminal Operating Co., 358 U.S. 354,

360–379, 79 S.Ct. 468, 473–84, 3 L.Ed.2d 368 (1959) explained:

[a]bstractly stated, the problem is the ordinary task of a court to apply the words

of a statute according to their proper construction. But "proper construction' is

not satisfied by taking the words as if they were self-contained phrases. So

considered, the words do not yield the meaning of the statute. The words we have

to construe are not only words with a history. They express an enactment that is

part of a serial, and a serial that must be related to Article III of the Constitution,

the watershed of all judiciary legislation, and to the enactments which have derived

from that Article.

If the history of the interpretation of judiciary legislation teaches anything, it

teaches the duty to reject treating such statutes as a wooden set of self-sufficient

words.... [We must not forget that it] is a statute, not a Constitution, we are

expounding.

original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause."

Osborn "reflects a broad conception of "arising under' jurisdiction, according to which Congress may

confer on the federal courts jurisdiction over any case or controversy that may call for the application

of federal law." Verlinden, 461 U.S. at 492, 103 S.Ct. at 1970. Even if the only issues to be decided

are ones of state law, Article Three permits the exercise of jurisdiction if one of the parties is a federal

corporation. See, e.g., The Bank of the United States v. The Planters' Bank of Georgia, 22 U.S. (9

Wheat) 904, 6 L.Ed. 244 (1824).

Congress, however, did not actually grant the lower federal courts removal jurisdiction over

federal question cases until 1875.10 This statute, the predecessor to 28 U.S.C. § 1441, was given an

expansive interpretation in the Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed.

319 (1885). The Pacific Railroad Court relied on Osborn to hold that "every case, irrespective of

its nature, brought by or against a federally charted corporation is a suit arising under the "laws of

the United States.' " Frankfurter, Distribution of Judicial Power Between United States and State

Courts, 13 Cornell L.Q. 499, 509 (1928).

The expansive reading given by the Pacific Railroad Court to "arising under" was soon

curtailed. Id. See also Romero, 358 U.S. at 379 n. 50, 79 S.Ct. at 484 n. 50. 28 U.S.C. § 1331, for

example, is interpreted more narrowly than the Constitution permits. Verlinden, 461 U.S. at 494–95,

103 S.Ct. at 1971–72. The general removal statute, 28 U.S.C. § 1441, is also not interpreted as

broadly as it could be. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868,

872, 85 L.Ed. 1214 (1941) (the "policy of the successive acts of Congress regulating the jurisdiction

of the federal courts is one calling for the strict construction of [removal]") and Willy v. Coastal

Corp., 855 F.2d 1160 (5th Cir.1988), appeal after remand, 915 F.2d 965 (5th Cir.1990), aff'd, –––

U.S. ––––, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). See also Collins, The Unhappy History of

Federal Question Removal, 71 Iowa L.Rev. 717 (1986).

10

Act of March 3, 1875, ch. 137, § 2, 18 Stat. 470.

It is clear that no federal jurisdiction exists over the present dispute under either 28 U.S.C.

§ 1331 or § 1441 because the issues are governed by state law and federal law is a small ingredient

of the dispute. See Gully v. First National Bank at Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed.

70 (1936) (for a suit to "arise under" federal law, a "right or immunity created by the Constitution

or laws of the United States must be an element, and an essential one, o f the plaintiff's cause of

action") and Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct.

2841, 77 L.Ed.2d 420 (1983). It is equally clear that Congress enacted 12 U.S.C. § 1819 precisely

so that the FDIC could enjoy federal question jurisdiction similar to that articulated in Osborn and

the Pacific Railroad Removal Cases. See Pernie Bailey Drilling Co. v. FDIC, 905 F.2d 78 (5th

Cir.1990); Franklin National Securities Litigation v. Andersen, 532 F.2d 842 (2nd Cir.1976); and

FDIC v. George–Howard, 153 F.2d 591 (10th Cir.), cert. denied, 329 U.S. 719, 67 S.Ct. 53, 91

L.Ed. 623 (1946).

Thus, nothing in the history of federal jurisdiction compels us to ignore the plain meaning of

§ 1819 and find that it creates a more restricted type of removal jurisdiction than its language allows.

Similarly, a bro ader look at the ways in which the statute enhances the FDIC's procedural, and in

particular post-judgment powers reveals nothing inconsistent with our finding that it authorizes

removal in this case.

2. Other Procedural Advantages in FIRREA.

We recently reco gnized an important way FIRREA increases the FDIC's post-judgment

powers in RTC v. McCrory, 951 F.2d 68, 71 (5th Cir.1992). In that case, we held that FIRREA

permitted federal regulators to assert their special defenses for the first time on appeal. See also

Union Federal Bank v. Minyard, 919 F.2d 335, 336 (5th Cir.1990) (FDIC allowed to raise special

defense for first time on appeal because, as the Corporation was not a party in the trial court, it had

neither the occasion nor opportunity to raise it below); FDIC v. Castle, 781 F.2d 1101, 1106 (5th

Cir.1986) (FDIC allowed to first raise defenses on appeal because applicability of defenses clear

under relevant statute). Generally, arguments not asserted until an action reaches an appellate level

are lost. See, e.g., Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir.1991), and cases cited

therein. FIRREA confers a powerful litigation weapon by making such usually untimely arguments

available to the FDIC. But see Baumann v. Savers Federal Savings & Loan Assoc., 934 F.2d 1506,

1511 (11th Cir.1991), petition for cert. filed, (U.S. January 6, 1992) (holding that FIRREA does not

allow Resolution Trust Corporation to raise issues on appeal which were not raised below).

Furthermore, 12 U.S.C. § 1819(b)(2)(C) allows the FDIC to appeal orders remanding

removed actions to state courts. Under the general removal statutes, such orders are not appealable.

28 U.S.C. § 1447(d). In addition, the FDIC can remove in any case to which it is a party, even

though generally only defendants can remove. 28 U.S.C. § 1441(a). In Lazuka v. FDIC, 931 F.2d

1530, 1535 (11th Cir.1991), the Eleventh Circuit held that § 1819 allows the FDIC to overcome the

"well-pleaded complaint" rule. Under this rule, the basis for federal jurisdiction must appear on the

face of the complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96

L.Ed.2d 318 (1987). Section 1819 allows the FDIC to invoke federal jurisdiction regardless of what

appears in the complaint. The Lazuka court found that, in enacting FIRREA, "Congress used very

strong language to afford the FDIC every possibility of having a federal forum within the limits of

Article III." Id. 11 Although this is not a post-judgment advantage, it is another indication of the

importance Congress placed on getting cases falling under the scope of FIRREA into federal courts.

Cumulatively, these procedural advantages bestowed by Congress tremendously increase the

FDIC's ability to carry out its regulatory and enforcement responsibilities under FIRREA. These

advantages allow the FDIC to step into the shoes of a troubled financial institution at any stage of

proceedings without being penalized for the timing of that substitution and to effectively and

aggressively protect the institution's interests and assets. Our finding that § 1819 allows removal in

11

Additionally, it is even possible for parties other than the FDIC to remove an action once the

FDIC becomes a party. FDIC v. Otero, 598 F.2d 627 (1st Cir.1979).

this case is completely consistent with the other procedural advantages FIRREA gives the FDIC and

with the underlying goal of promoting uniform federal, as opposed to state, regulation and

supervision of thrift institutions.

D. Procedural Results of Allowing Appellate Removal.

Appellees argue against finding jurisdiction under FIRREA because of the procedural

consequences. Their argument goes like this: If we allow removal after a final state court judgment

has been entered and where Rule 60 relief is not available, the federal district court would have no

original jurisdiction to exercise. Basically, it would face two choices. First, it could review the state

court judgment in an appellate posture. We make no indication of the propriety of such action

because it is not necessary to force district courts into this role when the other role available to them

does not present such complex constitutional and jurisdictional issues.

This second option is for the district court to take the state judgment as it finds it, prepare the

record as required for appeal, and forward the case to a federal appellate court for review. We are

not persuaded that this so-called "rubber-stamping" by district courts is so at odds with Article Three

jurisprudence that it precludes following the plain language of the statute or that Congress could not

have intended this result.

It is argued that district courts, in order to exercise original jurisdiction, must "judge

something" in order for there to be a case or controversy before them under Article Three. The case

or controversy requirement does not, however, preclude federal appellate courts from remanding

cases to district courts on a regular basis with instructions to take a prescribed action, such as enter

judgment for a specified party. See, e.g., Mulligan v. Schultz, 848 F.2d 655, 658 (5th Cir.1988)

(dist rict court's dismissal for lack of subject matter jurisdiction vacated and case remanded with

instructions to enter judgment for appellees); Ferguson v. Heckler, 750 F.2d 503, 505 (5th Cir.1985)

(district court's upholding of an ALJ's determination under Social Security Act reversed and case

remanded with instructions to enter judgment in favor of the claimant); and Thorne v. Jones, 765

F.2d 1270, 1278 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986)

(district court's judgment against defendants for violating plaintiffs' constitutional rights reversed and

case remanded with instructions to enter judgment for the defendants). The district court's role in

these remand situations in no less mechanical and involves no more active a judicial role than does

adopting a state court judgment and sending the proceeding to an appellate court.12

We have been presented with a parade of horribles which it is argued will follow from our

holding. These premonitions unnecessarily complicate the matter. A case removed from state court

simply comes into the federal system in the same condition in which it left the state system. Granny

Goose Foods, Inc. v. Brotherhood of Teamsters, Etc., 415 U.S. 423, 435–36, 94 S.Ct. 1113,

1122–23, 39 L.Ed.2d 435 (1974). For instance, if the notice of appeal was adequate in the state

court system, it should be deemed adequate when it enters the federal courts, regardless of whether

the state technical requirements for notice of appeal differ from the federal. Granny Goose, 415 U.S.

at 435–36, 94 S.Ct. at 1122–23 ("Judicial economy is promoted by providing that proceedings had

in state court shall have force and effect in federal court, so t hat pleadings filed in state court, for

example, need not be duplicated in federal court.").

Finally, we do not intend by the holding in this case to suggest that the FDIC removal statutes

"effect a wholesale replacement" of the general removal statutes found in 28 U.S.C. §§ 1441–51. We

agree that § 1819(b)(2)(B) invokes Section 1441 by referring to "the appropriate United States

District Court" and t hat FIRREA's lack of provisions for the mechanics of removal necessitates

reliance on the general schema. Indeed, we recently held that the FDIC must adhere to the timely

filing requirements of the general removal statutes. FDIC v. Loyd, 955 F.2d 316 (5th Cir.1992) (28

12

A compromise to the case or controversy issue would be to allow removal only when

Fed.R.Civ.P. 60 relief is available. We are certain, however, that Congress did not intend to

deprive the parties to this dispute of their right to appeal and to relegate them to relief under Rule

60 when it expanded the FDIC's removal power by enacting the FDIC removal statute.

U.S.C. § 1446(b) timely filing requirement applies to the FDIC under FIRREA). FIRREA, however,

confers a specific removal power to a federal corporation. To the extent that the specific powers or

mechanisms in the statute are inconsistent with the general removal statutes, FIRREA supersedes the

general statutes. This holding is consistent with the Eleventh Circuit's in Lazuka v. FDIC, which, like

our decision in Loyd, held that removal under FIRREA does fit into the general removal scheme. 931

F.2d at 1536 (concluding that "the FIRREA removal provisions located at 12 U.S.C. § 1819 should

be viewed as specific exceptions from the relevant provisions of general removal procedure, located

at 28 U.S.C. §§ 1441, 1446, 1447" but reaching a different conclusion than Loyd concerning when

the 30–day filing period under 28 U.S.C. § 1446 begins to run). Because the statutes and the law that

has evolved from them conflict on the issue before us, FIRREA controls.

II. Sanctions

Since we reverse the district court's decision to remand the instant appeal, it is clear that its

award of sanctions for improper removal must also be reversed.

Conclusions

The decision of the district court remanding this matter and assessing sanctions is

REVERSED, its remand order is VACATED and this matter is REMANDED to the district court

for further proceedings.

DeMOSS, Circuit Judge, specially concurring:

During the pendency of this matter on appeal, 12 U.S.C. § 1819(b)(2)(B) was amended to

read as follows:

"(B) Removal

Except as provided in subparagraph (D), the Corporation may, without bond

or security, remove any action, suit, or proceeding from a State court to the

appropriate United States district court before the end of the 90–day period

beginning on the date the action, suit, or proceeding is filed against the Corporation

or the Corporation is substituted as a party." (Underlining added to indicate new

language) (Pub.L. 102–242, Title I, § 161(d), 105 Stat. 2236, 2286, Dec. 19, 1991)

Some of my colleagues think that this amendment has little or no significance. I think it does.

The fundamental conflict in this case relates to the issue of whether the provisions of § 1819(b)(2)(B)

indicate anything regarding Congress' intention about the status of the case being removed. Absent

the new language added to this Section by the 1991 Amendment, I am inclined to agree with the

dissent that the "general language does not address the trial/appellate status" of the case being

removed.

With the new language of the 1991 Amendment in place, however, the "plain meaning"

argument of the majority holds water, even in the unusual circumstances involved in this case. The

new language indicates two periods of time when removal may be accomplished. The first period of

time begins with the filing date of an action, suit, or proceeding in a state court in which "the

Corporation" (FDIC) is a party defendant and ends 90–days later. The second period of time in

which removal may be accomplished begins with the date the Corporation is substituted as a party

in any action, suit, or proceeding in a state court and ends 90 days thereafter.

I recognize that the statutory language defining the second period does not contain express

language like "regardless of the status of the case being removed." But the language defining the first

period does clearly indicate that the Congress thought about the subject of status of the case being

removed (and the status of the Corporation as a party defendant therein) and the failure to use any

language about the status of the case being removed (or the status of the Corporation as a party

therein) in the definition of the second period should, in my mind, properly be construed as being a

conscious omission; leading to the conclusion that whenever removal is sought in a case in which the

Corporation has been substituted as a party, the status of the case being removed (and the status of

the Corporation as a party) is not material.

The first period for removal reflects the traditional circumstances for removal as contemplated

by 28 U.S.C. § 1441 et seq. but gives the Corporation 90 days instead of 30 days to effect removal.

The second period for removal is a special and unique right granted to the Corporation as part of the

broad remedial purposes of the FIRREA Legislation as described in the majority opinion. Likewise,

for the reasons stated in the majority opinion, Congress clearly has the authority to establish this

special and unique removal right. In the best of all worlds maybe Congress should have more

thoroughly reflected its intentions with companion amendments which would expressly solve the

uncertainties raised by the dissent. Obviously, we don't live in the best of all worlds. But I concur

in the majority holding because I am satisfied that the language added by the 1991 Amendment does

sufficiently express Congress' intent that removal be permitted even in the out-of-the-ordinary

circumstances of this case.

POLITZ, Chief Judge, with whom GARWOOD, HIGGINBOTHAM, WIENER, and

EMILIO M. GARZA, Circuit Judges, join, dissenting:

I cannot accept the major disruption of federal practices and procedures and the gross

intrusion on the state judicial systems fostered by the majority opinion and therefore respectfully

dissent. Persuaded that the removal of this case was inappropriate and improper, I would affirm the

order of remand.

I briefly restate the procedural history and posture of these proceedings. Meyerland Co. and

William M. Adkinson sued Continental Savings Association in state court in Texas for usury, fraud,

fraud in the inducement, and misrepresentation. Continental counterclaimed for fraud and breach of

contract. As damages, the trial court awarded Continental $30,031,089.99 and Adkinson

$1,124,109.59. Meyerland and Adkinson appealed.

The parties had submitted their appellate briefs when, on September 30, 1988, the Federal

Home Loan Bank Board declared Continental insolvent and appointed the Federal Savings and Loan

Insurance Corporation as receiver. The FSLIC removed to federal district court but the case was

remanded on April 21, 1989. On August 9, 1989, the Financial Institutions Reform, Recovery and

Enforcement Act (FIRREA), Pub.L. 101–73, 103 Stat. 183, was enacted and the FDIC succeeded

the FSLIC as Continental's receiver. Claiming authority under FIRREA, 12 U.S.C. §

1819(b)(2)(B)),1 the FDIC removed the cause. Our district court again remanded and imposed $2500

in sanctions upon the FDIC. The FDIC timely appealed.2

FIRREA expands the original and removal jurisdiction of the district courts by permitting the

FDIC to remove cases which ordinarily would have been matters for the state courts. See

Carrollton–Farmers Branch Independent School District v. Johnson & Cravens, 889 F.2d 571 (5th

Cir.1989); Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205 (5th Cir.1989). The

majority accepts the FDIC contention that FIRREA also allows the removal of a state court case even

if the time for relief from judgment has run and the action is before a state appellate court. In cases

in which Fed.R.Civ.P. 60 relief is not available, the disposition urged by the FDIC mandates one of

two results: The federal district court, in reviewing the case on the merits, exercises appellate

jurisdiction over the state court; or the district court must accept as its own the decision of the state

court and immediately turn the case over to the appropriate federal court of appeals. I reject both

alternatives and would conclude that if Rule 60 relief is either unavailable or not sought, FIRREA

neither authorizes nor requires removal of a case from a state appellate court to a federal district

court.

FIRREA, at 12 U.S.C. § 1819(b)(2), provides in pertinent part:

(A) In general

1

FIRREA's jurisdictional provisions apply to cases pending on the date of its enactment. See

Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205 (5th Cir.1989); see also

Kirkbride v. Continental Casualty Co., 933 F.2d 729 (9th Cir.1991); Federal Deposit Ins. Corp.

v. 232, Inc., 920 F.2d 815 (11th Cir.1991); Demars v. First Service Bank for Savings, 907 F.2d

1237 (1st Cir.1990); In re Resolution Trust Corp., 888 F.2d 57 (8th Cir.1989).

2

Although remand orders generally are not appealable, 12 U.S.C. § 1819(b)(2)(C) authorizes

appeal by the FDIC.

Except as provided in subparagraph (D), all suits of a civil nature at common law or in equity

to which the Corporation, in any capacity, is a party shall be deemed to arise under the laws

of the United States.

(B) Removal.

Except as provided in subparagraph (D), the Corporation may, without bond or security,

remove any action, suit, or proceeding from a State court to the appropriate United States

district court.3

The FDIC insisted, and the majority now holds that the broad statutory language "any action, suit,

or proceeding from a State court" permits removal regardless of the case's status within the state

judicial system. Despite the breadth of the description of the categories of removable cases, however,

the statute is silent on the critical question of the procedural posture of the litigation. I am convinced

that the broad statutory language providing for removal of "any action, suit, or proceeding" describes

and is limited to the types of removable matters; that general language does not address the

trial/appellate status.

I am persuaded beyond peradventure that if Congress had intended to grant federal district

courts the totally new power to review state court decisions, it would have articulated that authority

with great specificity. An historical cornerstone of federal jurisdiction is t at the general grant of

h

jurisdiction to federal district courts does not include the power to review final state court

judgments.4 It is therefore only reasonable to expect that if Congress intended to vest the removal

authority as embraced by the majority that authority would have been expressed with the same

preciseness found in other specific jurisdictional grants. For example, Congress has promulgated

express, succinct guidelines for judicial review of agency actions. See the Administrative Procedure

Act, at 5 U.S.C. §§ 701–706. In empowering t he courts of appeals with authority to review

particular agency orders, Congress has not required, as in the FIRREA removal provision, that the

case be presented initially to the district court but has, instead, expressly permitted filing directly in

3

Subparagraph (D) is inapplicable to the present inquiry.

4

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

the courts of appeals.5 Similarly, the distinct boundaries of federal review of state court criminal

procedures have been detailed expressly by Congress. See 28 U.S.C. §§ 2241–2254. One need be

mindful that even the power of the United States Supreme Court to review final state court judgments

has been legislatively defined. See 28 U.S.C. § 1257.

That section 1819's broad statutory language is not sufficient to create the exceptional

removal right granted by the majority should immediately be apparent when one considers the

consequences of that holding. Under today's holding we must either direct the district courts to sit

as appellate courts over the removed state court cases, or require our trial courts to "rubber stamp"

state court judgments and forward them to federal appellate courts for review. The first option

requires the district court to exercise appellate jurisdiction, not original jurisdiction. See 28 U.S.C.

§ 1441(a). The language purportedly requiring this result is contained not only in section 1819, but

also in the very statute that forges t he original jurisdiction limitation. Compare 12 U.S.C. §

1819(b)(2)(B) ("any action, suit, or proceeding from a State court") with 28 U.S.C. § 1441(a) ("any

civil action brought in a State court").

I see no conceivable support for the proposition that FIRREA effects a wholesale replacement

of the usual federal schema, including the removal statutes, 28 U.S.C. §§ 1441–1451.6 For example,

by referring to the "appropriate United States District Court," subsection 1819(b)(2)(B) obviously

invokes the venue provisions of 28 U.S.C. § 1441(a). FIRREA contains no provisions for the

5

28 U.S.C. § 2342 (granting courts of appeals exclusive jurisdiction to review final orders of

the Federal Communications Commission, the Secretary of Agriculture, the Secretary of

Transportation, the Federal Maritime Commission, and the Interstate Commerce Commission); 8

U.S.C. § 1105a (Immigration and Naturalization Service order reviewed pursuant to 28 U.S.C. §

2341 et seq.); 29 U.S.C. § 160(f) (National Labor Relations Board orders reviewed by courts of

appeals); and, 18 U.S.C. § 843(e)(2) (Secretary of Treasury licensing decisions reviewed by

courts of appeals). See also 16 U.S.C. § 825l (delineating the power of the United States Court

of Appeals for the District of Columbia to review final orders of the Federal Power Commission)

and 28 U.S.C. § 2645 (Court of International Trade decisions reviewed by the Federal Circuit).

6

See, e.g. Lazuka v. Federal Deposit Ins. Corp., 931 F.2d 1530, 1536 (11th Cir.1991)

(Congress intended "that the FDIC adhere in most respects to general removal procedure");

Federal Deposit Ins. Corp. v. Norwood, 726 F.Supp. 1073, 1075 (S.D.Tex.1989).

mechanics of removal. Without resort to the general statutes the procedures for notice of removal

to the district court, for opposition thereto, and for stay of the state court proceedings are

nonexistent. At this point it is worthy of underscoring that when Congress took FDIC cases out of

the ordinary rule forbidding appellate review of remand orders, it expressly detailed that exception

in 12 U.S.C. § 1819(b)(2)(C). By contrast, FIRREA contains no waiver of the original jurisdiction

limitation of district court jurisdiction or of any of the other general federal rules or procedures.

The majority finds the second FDIC suggestion acceptable; I do not. A district court forced

to adopt a state trial court decision as its own would not be exercising original jurisdiction over a case

or controversy. I reject the suggestion that Congress would consider, even momentarily, imposing

such a limiting function on an Article III court.7 Furt her, assuming an adequate resolution of the

district court's role, the incongruities inherent in this proposal extend even further for we are forced

to theorize on the subject of our own jurisdiction. The FDIC suggests two procedural tracks for

7

Congress' power to confer jurisdiction on federal courts under Article III of the United States

Constitution is limited to "cases" and "controversies." In National Mutual Insurance Co. v.

Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), however, three

Supreme Court Justices took the view, rejected by the other Justices, that Article I of the

Constitution empowers Congress to confer on "constitutional" federal courts powers beyond

those defined in Article III. This theory has never been sanctioned by a majority of the Court and

it is not viable today. See L. Tribe, American Constitutional Law, 68, 187–88 (1988) (footnote

omitted); C. Wright, The Law of Federal Courts 110 (1983).

Reserving comment on its validity, we also distinguish the theory popularly known

as "protective jurisdiction." This theory has been posited to justify congressional grants of

federal subject matter jurisdiction without concomitant substantive legislation, but not to

justify grants of jurisdiction without the power to judge the case. See Bickel &

Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71

Harv.L.Rev. 1, 21 (1957); C. Wright, supra. at 110–11.

In addition, "[i]n order for a claim to be justiciable as an article III matter, it must

"present a real and substantial controversy which unequivocally calls for adjudication of

the rights' asserted." L. Tribe, supra. at 68 (quoting Poe v. Ullman, 367 U.S. 497, 509,

81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961) (Brennan, J., concurring in the judgment)).

The "justiciability" maxim is anchored in concepts of "mootness," "ripeness," and

"standing," and does not precisely address the "rubber stamp" theory before this court.

See e.g., Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Nonetheless, just as it requires an adversarial context, the case-or-controversy requisite of

Article III would seem to require, at a minimum, the power to judge something.

today's holding, one which requires a notice of appeal and one which does not. 8 Both of these

alternatives are in conflict with other well-established rules. One rubric provides that once a case has

been removed to federal court its course is governed by federal law. Granny Goose Foods, Inc. v.

Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 441, 94 S.Ct. 1113, 1125, 39

L.Ed.2d 435, 451 (1974). The majority embraces Granny Goose Foods. Another rule obliges the

federal court to accept the case "in its current posture "as though everything done in state court had

in fact been done in the federal court.' " Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1303

(5th Cir.1988) (quoting Savell v. Southern Ry., 93 F.2d 377, 379 (5th Cir.1937) and discussing

Granny Goose Foods ). If a case is already on appeal in state court and is subsequently removed to

a federal district court, however, we must either ignore the federal notice of appeal requirements in

order to accept the case in its state posture, or we must ignore the state posture by requiring a federal

notice of appeal. With today's holding, without any congressional leave the jurisdictional notice of

appeal simply disappears. By a deft brush of legal legerdemain the majority automatically vests

federal appellate jurisdiction over a state court case which has, somehow, passed through the

precinct s of a powerless district court judge. Appellate jurisdiction is just one example of the

attendant clashes between state and federal procedures. If, "any action, suit, or proceeding" means

any matter at any stage in the litigation process, then a case may be removed while a writ of certiorari

8

One proposed procedural track that this court could adopt to effectuate the FDIC's

interpretation would not require a federal notice of appeal. The FDIC suggests:

Under this approach, an appeal perfected in state court results in the perfection of

an appeal in the federal circuit court. Because a notice of appeal has already been

filed in state court and is, upon removal, on file in the federal district court, no new

notice would need to be filed in the federal court. The state court notice of appeal

would be given the same effect as if it were a notice of appeal filed in federal court.

The federal district court need only transmit the record to the federal court of

appeals so that the case can proceed from the point where it left off in state

appellate court.

The FDIC also proffers an alternative proposal, the procedure followed by the

Eleventh Circuit in Jackson v. American Sav. Mortg. Corp., 924 F.2d 195 (11th

Cir.1991). Under the Jackson procedure, the FDIC must file a Rule 59 motion. If the

district court refuses to modify or vacate, then the state court judgment or order becomes

the district court's judgment or order. A notice of appeal would follow the district court's

disposition of the Rule 59 motion.

is pending before the state's highest court or, even more startlingly, after disposition by the state's

highest court and pending a petition for rehearing before that court, or even thereafter, pending a writ

application to the United States Supreme Court. In each of those instances we must now fabricate

the appropriate procedural rules out of whole cloth. Are we to decide whether the state court would

consider the case important enough to grant discret ionary review? Should we apply our own

appellate rules and consider the appeal mandatory? Should we grant the rehearing? What standard

are we to apply in reviewing the rehearing; should we seek to act as we fathom the state court would

act or should we independently analyze the problem? Extending the majority's analysis, perhaps we

should mandate the adoption of the state appellate court's decision as our own decision and then

allow the case to proceed on a writ of certiorari from this court to the United States Supreme Court.

Or even more alarming, suppose the supreme court of the state has granted a writ of certiorari to an

intermediate state appellate court at the time of the FIRREA removal. Does that require the United

States Supreme Court to hear the case on certiorari? Under the majority's analysis of Granny Goose

Foods that answer apparently must be "yes." Other questions come to mind. I entertain no doubt

whatever that the simple broad language of 12 U.S.C. § 1819(b)(2)(B) was not intended to impose

those bizarre procedures upon the federal judiciary, either trial or appellate.

These dizzying circumstances would not plague our federal procedural scheme, however, if

after removal the district court were asked to grant Rule 60(b) relief. In that setting the

long-established federal protocols would not be shredded. In prior decisions we have allowed the

removal of a case subsequent to a state court default judgment where Rule 60(b) relief was still

available. Federal Deposit Ins. Corp. v. Yancey Camp Development Co., 889 F.2d 647 (5th

Cir.1989), is the only prior case allowing removal after the state appellate court has been vested with

jurisdiction. In Yancey we held that the district court improperly refused to set aside a state default

judgment. We did not discuss the removal question but noted that a "state court judgment in a case

properly removed to federal court—like the one before us—can be vacated under Federal Rule of

Civil Procedure 60(b)." 889 F.2d at 648.

In Murray v. Ford Motor Co., 770 F.2d 461 (5th Cir.1985), removal was effected while a

timely motion to set aside a default judgment was pending in the state trial court. The state court had

not received the removal notice and had entered a default judgment after the removing party failed

to appear in court . Pursuant to Rule 60(b)(1) we allowed the state judgment to be set aside.

Similarly, in Beighley v. Federal Deposit Ins. Corp., 868 F.2d 776 (5th Cir.1989), motions to vacate

the judgment and for a new trial were still pending in the state trial court when the suit was removed.

In Northshore Development, Inc. v. Lee, 835 F.2d 580 (5th Cir.1988), we interpreted 12

U.S.C. § 1730(k)(1) (repealed) to permit removal after entry of a state trial court damages award;

the FSLIC was seeking Rule 60(b) relief. We have also permitted a district court on removal to set

aside a default judgment against a Jones Act defendant. Azzopardi v. Ocean Drilling & Exploration

Co., 742 F.2d 890 (5th Cir.1984). The Ninth Circuit has permitted a district court on removal to set

aside a default judgment against a diverse defendant on a state law claim. Butner v. Neustadter, 324

F.2d 783 (9th Cir.1963). In Munsey v. Testworth Laboratories, Inc., 227 F.2d 902 (6th Cir.1955),

the Sixth Circuit did likewise. Removal in these cases did not require or result in a disruption of the

established federal procedural practices.

I cannot accept the contention that congressional policy behind FIRREA justifies the

remarkable removal power which today's majority grants the FDIC. Indeed, the scant guidance

provided by FIRREA's legislative history supports my conclusion that the words "any" and "State

court," when interpreted in the context of FIRREA and the general procedural statutes, do not mean

every matter at every procedural stage of litigation. When FIRREA's removal provision was first

submitted in a House of Representatives amendment it was described as vesting in the FDIC only the

"authority to remove certain State court proceedings to Federal court." H.R.Rep. No. 101–54(I),

101st Cong. 1st Sess., reprinted in 1989 U.S.Code Cong. & Admin.News 86, 124–25 (discussing

H.R. 1278, 101st Cong., 1st Sess. (Version 2 of May 18, 1989)) (emphasis added). Certain

proceedings, not all state court proceedings.

I would hold that 12 U.S.C. § 1819(b)(2) does not permit the FDIC to remove a state court

appellate proceeding if, at the time of removal, relief is not available under Rule 60 of the Federal

Rules of Civil Procedure, and therefore respectfully DISSENT.

.....