Petition for Writ of Certiorari — Meyerland Co. v. Federal Deposit Insurance

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IN THE

, AUG 11 1892

Supreme Court of the United States

OCTOBER TERM, 1992 GFFICE OF FHE @LERK

MEYERLAND COMPANY AND

WILLLIAM MICHAEL ADKINSON,

PETITIONERS,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

AS MANAGER OF THE FSLIC RESOLUTION FUND,

AS RECEIVER FOR CONTINENTAL SAVINGS

ASSOCIATION,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FiFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MIKE O’BRIEN

MIKE O’BRIEN, P.C.

440 LOUISIANA

SUITE 2300

HOUSTON, TEXAS 77002

TEL: (713) 222-0088

FAX: (713) 222-6903

COUNSEL FOR PETITIONERS

IT.

ITT.

IN THE MATTER OF MEYERLAND CO.

QUESTIONS PRESENTED

Whether the general removal statutes or the removal

provisions of the Financial Institutions Reformation

Recovery and Enforcement Act empower a federal

district court to interfere with a final judgment, which

is being reviewed in the state appellate process, when

no other independent basis for removal exists under

federal law.

Whether the removal of a case pending in a state

appellate court, where no original jurisdiction can be

exercised by the federal district court, violates the

United States Constitution.

If removal of a case pending in any phase of a state

appellate process is permitted by the FDIC’s statutes

and the United States Constitution, what is the

appropriate procedural track for the case in federal

court?

ul IN THE MATTER OF MEYERLAND COMPANY

PARTIES

The plaintiffs below were Meyerland Company and

William Michael Adkinson. The defendant was the Federal

Deposit Insurance Corporation, as manager of the FSLIC

Resolution Fund, as Receiver of Continental Savings

Association.

Petitioner Meyerland Company is a wholly owned

subsidiary of The Development Group, Inc. Meyerland

Company has no subsidiaries.

IN THE MATTER OF MEYERLAND CO.

TA F CONTENT!

Fe eG. ee |:

py Ge tes yo |

Se ee kk

ee ike ko 5 kn kk 0s 8

CONSTITUTIONAL PROVISIONS INVOLVED

RULES AND STATUTES INVOLVED .........

BASIS FOR FEDERAL JURISDICTION IN THE

COURT OF FIRSTINSTANCE .........

Dareemeeeen Se Ge CAGE ..... 1... www ee

REASONS FOR GRANTING CERTIORARI ......

4 THE FIFTH CIRCUIT ERRONEOUSLY

HELD THAT THE FDIC’S REMOVAL

STATUTES EXPAND A_ FEDERAL

DISTRICT COURT’S POWER TO INCLUDE

REMOVAL JURISDICTION OVER A CASE

PENDING IN ANY PHASE OF A STATE

le RE NS G0 .. S

A. Congress Intended FIRREA to Rely

Upon General Removal Statutes Which

Provide No Basis for Federal Court

Jurisdiction Over Cases Pending in a

stats Appellate Court. ...........

ill

IV IN THE MATTER OF MEYERLAND COMPANY

i The federal district court does

not have original jurisdiction

over the dispute, which is

required by general removal

Ee ea oe ee ee 11

If Congress had intended to

depart from the ordinary

removal procedural

requirements, it would have

expucesy GONG 90. ......... 12

B. FIRREA Provides No Basis for Federal

Court Jurisdiction Over Cases Pending

in a State Appellate Court.......... 14

l. The language of 12 U.S.C. §

1819(b)(2) does not authorize

the removal of an action after

the state trial court loses plenary

power over the action. ....... 15

An action pending in a state

appellate court is not

"appealable" within the meaning

of 12 U.S.C. § 1821(d)(13). ... 18

ro

to

II. IN THE ALTERNATIVE, THE FIFTH

CIRCUIT ERRONEOUSLY HELD THAT

THE UNITED STATES CONSTITUTION

ALLOWED A FEDERAL DISTRICT COURT

TO EXERCISE REMOVAL JURISDICTION

OVER A CASE PENDING IN ANY PHASE

OF A STATE APPELLATE PROCESS. .... 20

A. Concepts of Comity and Federalism

Require that a Federal Court Refrain

from Exercising Appellate Jurisdiction

Over Final State Court Judgments. .... 22

a a Ee

IN THE MATTER OF MEYERLAND CO. V

B. The Tenth Amendment Obligates

Congress and Federal Courts to Respect

a Final State Court Judgment ....... 23

ee The Seventh Amendment Precludes

Federal Reexamination of a Final State

a ee lg Oran) ard oe 24

Ren ea i Neo LT eee 25

CT

V1 IN THE MATTER OF MEYERLAND COMPANY

This Page Intentionally Left Blank

IN THE MATTER OF MEYERLAND CO. Vil

TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES

Atlantic Coast Line Ry. Co. y.

Brotherhood of Locomotive Engineers,

eM 11, 20, 21

Bender v. Williamsport Area School

itt td de eg tS.) 21

Coyle v. Oklahoma, 221 U.S. 559 PGE wy Fee 23

Dist. of Columbia Ct. of Appeals vy.

Feldman, 460 U.S. 462 (1983) ................ 11

Evans v. U.S., -- U.S. --,

112 S. Ct. 1881, 1901 (1992).......... 9, 21, 23, 2a

Granny Goose Foods, Inc. v. Brotherhood

of Teamsters and Auto Truck Drivers

Local No. 70 of Alameda County, 415

ny rr ere ns hs Pe 19

Gregory v. Ashcroft, 111 S. Ct. 2395

Ge ey ose ee ee oe 9, 22

Griggs v. Provident Consumer Discount

Cm, Wop es Settee)... ws ee eee ee 11

Huffman v. Pursue, Lid., 420 U.S. 592,

603 (1975), reh’g denied, 421 U.S. 971

Ge Ne ree ee ae 23

Vill IN THE MATTER OF MEYERLAND COMPANY

Immigration and Naturalization Serv. v.

Chadha, 462 U.S. 942 (1983) .......

Isbrandtsen v. Johnson, 343 U.S. 779

EE Re nee A a ee a ae ae

Kremer v. Chemical Const. Corp., 456 U.S.

461 (1982), reh’g denied, 458 U.S. 1133

Sets a grace hank ee Se we Ses

Marbury v. Madison, 5 U.S. (1 Cranch)

2 SIRE os Seen a een

Midlantic Nat’! Bank v. New Jersey

Dept. of Env’t Protection, 474 U.S.

ia aoe rein ae ee

Mills v. Duryee, 11 U.S. (7 Cranch) 481

4S | ES a OE AD ten ory lee ne

Parsons Steel, Inc. v. First Alabama Bank,

474 U.S. 518 (1986), on remand to,

758 F.2d 929 (11th Cir. 1986), on remand

to, NO. Civ. A. 83V-181-N (M.S. Ala.,

1986), j. aff'd, 825 F.2d 1475 (11th Cir.

1987), cert. denied, 484 U.S. 1060 (1988)

Parsons v. Bedford, Breedlove & Robeson,

po ei ee A eee

Rooker v. Fidelity Trust Co., 263 U.S.

Cee SE, 6 es ee ee ee ak oe ees

to

i)

22

IN THE MATTER OF MEYERLAND CO. 1x

Thompson v. Immigration and

Naturalization Service, 375 U.S. 384

(1964), on remand to, 323 F.2d 167

ee he 18

U. S. COURT OF APPEALS CASES

Azzopardi v. Ocean Drilling

& Exploration Co., 742 F.2d 890

eg ergs coca chee 16

Beighley v. Federal Deposit Ins. Corp.,

we Foe tree Ge. 198). sk eee 16

Carrollton Farmers Branch Independent

School Dist. v. Johnson & Cravens, 889

F.2d 571 (Sth Cir. 1989), on remand

to, 776 F. Supp. 1180 (N.D. Tex. 1991) .......... 15

Corpus Christi Taxpayers Ass’n v. City

of Corpus Christi, Texas, 858 F.2d 973

(Sth Cir. 1988), reh’g denied, 860 F.2d

437, cert. dism’d, 490 U.S. 1032, cert.

ee a3

Federal Deposit Ins. Corp. v. Yancey Camp

Development, 889 F.2d 647 (Sth Cir. 1989) ........ 17

Federal Deposit Ins. Corp. v.

Loyd, 955 F.2d 316 (Sth Cir. 1992) ............. 12

Giannakos v. M/V Bravo Trader, 762 F.2d

I A oe st hal) ale 21

x IN THE MATTER OF MEYERLAND COMPANY

In re Franklin National Bank

Securities Litigation, 532 F.2d

ee ete ks A 5 on 6 6 ae he 12

In re Meyerland Co., 910 F.2d 1257

fs Se A ee eee ree ee eee

In re Meyerland Co., 960 F.2d $12 (Sth Cir.

RS ere eee ee ee 2, 7, 10, 14, 15, 17, 18

In re Savers Federal Sav. & Loan Ass’n,

pe & % Tih Yo A, 16

Jackson v. American Sav. Mortg. Corp.,

ee BF ee | re err 17

Lazuka v. Federal Deposit Ins. Corp.,

Rm Be Til be 2} ee 13

Marcal Paper Mills, Inc. v. Ewing,

ee ee Oe ee es I A we he wee es bea 23

Munsey v. Testworth Laboratories,

peage LF L r a e 16

Murray v. Ford Motor Co., 770 F.2d

ge Oe a a 16

Northshore Development, Inc. v. Lee,

Se ae ee Cn i SD hv SA ie eae et 16

Union Federal Bank of Indianapolis v.

Minyard, 919 F.2d 335 (Sth Cir. 1990) ........... 16

IN THE MATTER OF MEYERLAND CO. XI

Ward v. Resolution Trust Corp.,

91-3015EA (8th Cir. July 30, 1992) ............. 17

Woburn Five Cents Sav. Bank y. Robert

M. Hicks, Inc. , 930 F.2d 965 (Ist. Cir. 1991) . 10, 12, 14

DISTRICT COURT AND STATE COURT CASES

Addison Airport of Texas, Inc. y.

Eagle Investment Co., 691 F .Supp.

1022 (N.D. Tex. 1988)..................... 17

Alpert v. Resolution Trust Corp.,

No. CIV. A. 91-B-1907 (D.Colo.

“spies denis Bienen, Meee OES a oe ae ter ll

Federal Deposit Ins. Corp. v. Norwood.

726 F. Supp. 1073 (S.D. Tex. Pe 6 ane ee cus 12

Federal Deposit Ins. Corp. v. Ritchie,

646 F. Supp. 1581 (D. Neb. 1986) ............. 16

Federal Deposit Ins. Corp. v. Sellards,

731 F. Supp. 1300 (N.D. Tex. 1990) ............ 19

Federal Deposit Ins. Corp. v. Taylor,

727 F. Supp. 326 (S.D. Tex. 1989) ............. 16

Federal Savings and Loan Ins. Corp. v.

Templeton, 700 F. Supp. 456 (S.D. Ind.,

Sg GOA PO i ee

Mitchell v. Carter, 545 §.W.2d 869

(Tex.Civ.App.--Waco 1977).................. 23

Xu IN THE MATTER OF MEYERLAND COMPANY

Transamerica Leasing Co. v. Three

Bears Inc., 567 S.W.2d 799 (Tex. 1978) .......... 11

Vernon Sav. and Loan Ass’n v. Commerce

Sav. and Loan Ass'n, 677 F. Supp. 495

ec Ye ae 16

CONSTITUTIONAL PROVISIONS, STATUTES, AND

RULES

Pes e oe P| 5, 8, 12-16

Fos Rea ea). | nee 5, 14, 18, 19

Oe ome Be er are 2

Bs NUET RUUE 6 oath Oe ke 5

ee er OME wor Gs ook eek Hck 608 bon a ee ee 11

y Bie Som Be. ee ear err eae 5

Be Wcilne © OOO CERO cee ee 5, 10, 11, 14

Re ee er ee 13

ee ee ee ee ee 12

FDIC Improvement Act, Pub. L. No.

102-242 §161, 105 Stat. 2285 (1991) ............ 13

. 8 Se er ee or a ar ere eee 4

IN THE MATTER OF MEYERLAND CO. X11

Pee wa a Ce he oe ee ee 4, 20, 21

a le | gh ey eee ee 4, 8, 17, 20, 21

Financial Institutions Reform, Recovery

and Enforcement Act of 1989 (FIRREA),

Pub. L. No. 101-73, 103 Stat. 183

og ee a 4, 6-8, 12-16, 18-20, 25

Pe a a hea eo 18

ee es Pe oe ke 7, 11

un WO I, cee ek 4, 24

Meme MM MO, ee ce 4, 23, 24

U.s. Const. amend. XIV,§81................. 4

WS. Coast. amend. XIV,85...........2¢.... 4

kN Sen ac fe |

Moree CE ek ood cn. 3, 22

CS 3

OTHER AUTHORITIES

H.R. Rep. No. 54(1), 101st Cong.,

Ist Sess., reprinted in 1989 U.S.Code

Cong. & Admin. News 86, 124-25 ............. 16

XIV IN THE MATTER OF MEYERLAND COMPANY

House Report 101-54(1), p. 330,

U.S.Code Congressional and Administrative

News, 101st Cong. 1989, Vol. 2, p. 330. ......... 19

Judicial Improvements and Access

to Justice Act. Pub. L. No.

ec CS 56 a & Wee ea Ne a ee ee 13

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

MEYERLAND COMPANY AND

WILLLIAM MICHAEL ADKINSON,

PETITIONERS,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

AS MANAGER OF THE FSLIC RESOLUTION FUND,

AS RECEIVER FOR CONTINENTAL SAVINGS

ASSOCIATION,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FiFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that a writ of

certiorari issue to review the judgment and en banc

opinion of the United States Court of Appeals for the Fifth

Circuit.

2 IN THE MATTER OF MEYERLAND COMPANY

OPINIONS BELOW

District Judge Kenneth Hoyt’s unpublished order of

remand is included in the Appendix at p. 39a. The panel

opinion of the Fifth Circuit Court of Appeals in the case of Jn

re Meyerland Co., 910 F.2d 1257 (Sth Cir. i990) is included

in the Appendix at pp. 46a-64a. The en banc opinion of the

Fifth Circuit Court of Appeals in the case of Jn re Meyerland

Co. , 960 F.2d 512 (Sth Cir. 1992) is included in the Appendix

at pp. la-27a.

JURISDICTION

(i) The judgment sought to be reviewed (the en banc

opinion of the Fifth Circuit Court of Appeals) was

entered on May 13, 1992.

(ii) No motion for rehearing from the en banc opinion of

the Fifth Circuit Court of Appeals was filed.

Additionally, no request for an extension of time to

file this petition for a writ of certiorari was requested.

(iii) | This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1254(1) (1984). Additionally, the Fifth

Circuit, in departing from the accepted and usual

course of judicial proceedings, has decided an

important question of law which has not been, but

should be, decided by this Court.

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Article III

Section 1. The judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and establish.

IN THE MATTER OF MEYERLAND CO. 3

The Judges, both of the supreme and inferior Courts, shall

hold their Offices during good Behavior, and shall, at stated

Times, receive for their Services, a Compensation, which

shall not be diminished during their Continuance in Office.

Section 2. (1) The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority;--to all Cases affecting

Ambassadors, other public Ministers and Consuls;--to all

Cases of admiralty and maritime Jurisdiction:--to

Controversies to which the United States shall be a Party;--to

Controversies between two or more States;--to Controversies

between Citizens of different States;--between Citizens of the

same State claiming Lands under the Grants of different

States, [and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects. ]!

(2) In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall be a

Party, the supreme Court shall have original Jurisdiction. In

all the other Cases before mentioned, the supreme Court shall

have appellate Jurisdiction, both as to Law and Fact, with

such Exceptions, and under such Regulations as the Congress

Shall make.

United States Constitution, Article IV

Section 1. Full Faith and Credit shall be given in each State

to the public Acts, Records, and judicial Proceedings of every

other State; And the Congress may by general Laws prescribe

the Manner in which such Acts, Records and Proceedings

shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several States.

' Changed by the Eleventh Amendment

4 IN THE MATTER OF MEYERLAND COMPANY

United States Constitution, Amendment 7, 1791

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by jury, shall be

otherwise re-examined in any Court of the United States, than

according to the rules of the common law.

United States Constitution, Amendment 10, 1791

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.

United States Constitution, Amendment 14, 1868

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

junsdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by

appropniate legislation, the provisions of this article.

RULES AND STATUTES INVOLVED

1) Fed. R. Civ. P. 6, included in the Appendix at

p. 80a;

2) Fed. R. Civ. P. 59, included in the Appendix

at p. 81a;

3) Fed. R. Civ. P. 60, included in the Appendix

at p. 82a;

4) Financial Institutions Reform, Recovery and

IN THE MATTER OF MEYERLAND CO. 5

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

No. 101-73, 103 Stat. 183 (Aug. 9, 1989),

included in the Appendix at p. 93a;

5) 28 U.S.C. § 1257 (1984), included in the

Appendix at p. 92a;

6) 28 U.S.C. § 1345 (1984), included in the

Appendix at p. 84a;

7) 28 U.S.C. § 1441 (1984), included in the

Appendix at p. 85a;

8) 12 U.S.C. § 1819 (1984), included in the

Appendix at p. 93a.

9) 12 U.S.C. § 1821 (1984), included in the

Appendix at p. 97a.

BASIS FOR FEDERAL

JURISDICTION IN THE COURT OF

FIRST INSTANCE

The nature of this appeal contests the basis for

jurisdiction in the United States district court. Removal was

purportedly authorized pursuant to 12 U.S.C. § 1819(b)(2)

and 12 U.S.C. § 1821(d)(13).

STATEMENT OF THE CASE

This is an appeal from United States District Judge

Kenneth Hoyt’s order remanding this case back to an

intermediate appellate court, the Court of Appeals for the First

Supreme Judicial District of Texas. (Order of Remand, App.

at 40a.)

More than two years earlier, on May 26, 1987, a state

trial court entered a judgment for Continental Savings and

against Meyerland Company and its president, William M.

Adkinson. (R. 9 at 7-9.) Meyerland and Adkinson appealed

the final state judgment to the state appellate court. (R. 4 at

2.) Briefs were filed and arguments were scheduled on the

claims involving purely state law matters. Jd.

6 IN THE MATTER OF MEYERLAND COMPANY

While the case was pending in the state appellate court

and sixteen months after the state trial court had entered its

judgment, the Federal Home Loan Bank Board declared

Continental Savings insolvent and appointed the Federal

Savings and Loan Insurance Corporation (FSLIC) as receiver

for the failed savings institution. (Appellant’s Br., En Banc

Hr’g at 4.) FSLIC sought to have its derivative rights in the

state court action adjudged by a federal district court when it

filed a notice of removal. (R. 1 at 1.) On April 21, 1989,

Judge Hoyt ordered the case remanded back to the state

appellate court. (R. 11 at 1.)

Four months later, Congress enacted FIRREA, which

dissolved FSLIC and substituted the Federal Deposit Insurance

Corporation (FDIC) as receiver of the failed savings

institution. (Appellant’s Br., En Banc Hr’g at 6.) Once

again, the receiver attempted to have its derivative rights in

the state court action adjudged by a federal district court when

it filed another notice of removal. /d. On September 29,

1989, Judge Hoyt remanded the case back to the state

appellate court a second time because removal in this case

violated the purpose and spirit of the removal statutes. /d.

Additionally, Judge Hoyt imposed sanctions against the

receiver and its attorney. /d.

Judge Hoyt’s Order of Remand and Sanctions was

appealed to the United States Court of Appeals for the Fifth

Circuit. Respondent claimed that removal to federal court was

properly predicated upon the recent enactment of the Financial

Institutions Reform, Recovery and Enforcement Act of 1989

(FIRREA), Pub. L. No. 101-73, 103 Stat. 183 (Aug. 9,

1989). Id. On September 7, 1990, a divided panel of the

Fifth Circuit reversed Judge Hoyt’s order in a published

opinion. Jn re Meyerland Co., 910 F.2d 1257 (Sth Cir.

1990). This panel opinion was subsequently vacated by the

Fifth Circuit’s decision to rehear the case en banc.

(Appellant’s Br., En Banc Hr’g at 7.) On May 13, 1992, a

IN THE MATTER OF MEYERLAND CO. 7

seven to five majority of the court’ reversed Judge Hoyt’s

order. Jn re Meyerland Co., 960 F.2d 512 (Sth Cir. 1992).

REASONS FOR GRANTING

CERTIORARI

I. THE FIFTH CIRCUIT ERRONEOUSLY HELD

THAT THE FDIC’S REMOVAL STATUTES

EXPAND A FEDERAL DISTRICT COURT’S

POWER TO INCLUDE REMOVAL

JURISDICTION OVER A CASE PENDING IN

ANY PHASE OF A STATE APPELLATE

PROCESS.

According to the Fifth Circuit Court of Appeals, the

Financial Institutions Reform, Recovery and Enforcement Act

of 1989 ("FIRREA"), Pub. L. No. 101-73, 103 Stat. 183

(Aug. 9, 1989) gives the FDIC absolute discretion to ignore

state rules of finality and any jurisdictional or waiver

problems facing its predecessor in interest in a state court suit

once the FDIC intervenes. The Fifth Circuit’s decision

endorses the FDIC’s belief that it has unfettered discretion to

relitigate a state court verdict in a United States district court

of its choosing almost two years after the verdict becomes

final.? This interpretation ignores the provision of FIRREA,

* Judges Edith H. Jones and Rhesa H. Barksdale were recused.

> Under Texas law, a trial court’s judgment is final thirty days

from the date a motion for new trail is overruled. Tex. R. Civ. P.

329b(d). In the present case, the trial court entered the judgment on

May 26, 1987. A motion for new trial was filed on June 25, 1987.

8 IN THE MATTER OF MEYERLAND COMPANY

and disregards the procedural track of general removal

Statutes.

Although FIRREA specifically provides that actions

involving the FDIC arise under the laws of the United States;

this grant of authority does not empower the FDIC to remove

a case from a State appellate court at any time in the appellate

process. See 12 U.S.C. §1819(b)(2)(A). The language of

FIRREA must be considered in conjunction with the

limitations of a federal court’s power. The congressional

intent of FIRREA was to create federal question jurisdiction

in any suit involving the FDIC, and to permit removal

provided that the federal district court could exercise original

jurisdiction consistent with established rules of federal

procedural law and substantive constitutional principles.

The En Banc majority opinion of the Fifth Circuit

Court of Appeals ignored settled rules of statutory

construction, as well as federal procedural and constitutional

law, in permitting the FDIC carte blanche authority to remove

an action in the state appellate process at any time without

regard to existing principles of law. Thus, the Honorable

Court must correct the clearly erroneous folding of the Fifth

Circuit Court of Appeals, and resolve th = important

questions of federal statutory and constitutions iaw.

A. Congress Intended FIRREA to Rely Upon General

Removal Statutes Which Provide No Basis for

Federal Court Jurisdiction Over Cases Pending in

a State Appellate Court.

Congress certainly did not intend, by enacting

FIRREA, to grant the FDIC removal powers which could be

The trial court lost plenary power over the suit on September 9, 1987--

30 days after the motion for new trial was denied. Even under federal

guidelines, a federal district court lost the ability to alter the verdict on

May 26, 1988, one year after the state judgment was entered. Fed. R.

Civ. P. 60.

Dia enseciesniamianmnniinaianeane

IN THE MATTER OF MEYERLAND CO. 9

exercised in complete derogation of established rules

governing removal without expressly stating its legislative

intention to do so. Indeed this Court has held, that the normal

rule of statutory construction is that if Congress intends for

legislation to change the interpretation of a judicially created

concept, it must make that intent specific. Midlantic Nat’!

Bank v. New Jersey Dept. of Env’t Protection, 474 U.S. 494

(1986). This Court further held, "(s)tatutes which invade the

common law . . . are to be read with a presumption favoring

the retention of long-established and familiar principles, except

when a statutory purpose to the contrary is evident."

Isbrandtsen v. Johnson, 343 U.S. 779, 783 (1952). As this

court stated on May 26, 1992:

As we emphasized only last Term, however,

concerns of federalism require us to give a

narrow construction to federal legislation in

such sensitive areas unless Congress’ contrary

intent is "unmistakably clear in the language of

the statute." Gregory v. Ashcroft, 510 U.S. ---

-s----, 111 S. Ct. 2395, 2401 (1991) (internal

quotation marks omitted). This plain statement

rule is nothing more than an acknowledgement

that the States retain substantial sovereign

powers under our constitutional scheme,

powers with which Congress does not readily

interfere.

Id., as quoted in Evans v. U.S., -- U.S. --, 112 S. Ct. 1881.

1901 (1992),

The only sensible reading of the FIRREA removal

statute is that Congress clearly intended the general removal

principles to provide the requisite procedural guidance for

determining when removal is proper.

The FDIC’s argument that FIRREA grants FDIC

removal power wholly independent of the general removal

provision, has been rejected by the First Circuit Court of

Appeals based on these axiomatic principles of statutory

10 IN THE MATTER OF MEYERLAND COMPANY

construction. In Woburn Five Cents Sav. Bank, the Court of

Appeals in holding that the 30-day time limitation contained

in § 1446(b) applied in construing FIRREA’s § 1819(b)(2)(B),

cogently explained:

Finally, we think it inconceivable that

Congress, without any explicit statement,

intended such a drastic departure from existing

practice. The FDIC for years has been

required to adhere to the procedures set forth in

the general removal statute. If Congress had

intended to render that statute inapplicable and

to leave FDIC removal procedures up to the

discretion of individual judges, surely it would

have said so explicitly. (citation omitted)

In the absence of any other specified

procedure, logic dictates that FDIC removals

continue to be governed by the same general

removal principles that govern any other

removal.

Woburn Five Cents Sav. Bank v. Robert M. Hicks, Inc. , 930

F.2d 965, 968 (Ist. Cir. 1991).

It is important to remember that the underlying dispute

does not involve a federal question, but only issues of state

law. General removal principles would not allow the FDIC

to remove this case to federal court,* thus creating perforce

FDIC’s specious argument that the removal provision of

FIRREA authorizes a separate and independent procedural

* The en banc majority opinion declined to decide this case under

general removal provisions. See Jn re Meyerland Co., 960 F.2d 512,

515 n.5 (Sth Cir. 1992). The court did note, however, that the FDIC

could not remove the dispute under 28 U.S.C. § 1441. id.

Additionally, the majority questioned whether the FDIC could utilize

this provision in any case. /d.

IN THE MATTER OF MEYERLAND CO. 11

track. Only by reconciling FIRREA’s removal provision with

the general principles of law governing removal is the

congressional intent of FIRREA’s removal statute harmonized

with the requisite limitations imposed on the federal court’s

power.

1. The federal district court does not have original

jurisdiction over the dispute, which is required by

general removal statutes.

In order to be removable, a case must be one over

which the federal district court has original jurisdiction. 28

U.S.C. § 1441(a). A federal district court has original, not

appellate, jurisdiction over cases and controversies arising

under the laws of the United States. 28 U.S.C. § 1331;

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of

Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).

Indeed, in the words of this Court, "(l)ower federal courts

possess no power whatever to sit in direct review of state

court decisions." Atlantic Coast Line Ry. Co. v. Brotherhood

of Locomotive Engineers, 398 U.S. 281, 296 (1970) (emphasis

added). Restrictions on removal jurisdiction serve to ensure

that a federal forum will operate as intended--as a court of

limited jurisdiction. Marbury v. Madison, 5 U.S. (1 Cranch)

137 (1803), Immigration and Naturalization Serv. v. Chadha,

462 U.S. 942 (1983).

The federal district court can not exercise original

jurisdiction over this dispute because the state trial court’s

plenary power jurisdiction over the matter ended 13 months

before the case was removed. Tex. R. Civ. P. 329b(d);

Transamerica Leasing Co. v. Three Bears Inc., 567 S.W.2d

799, 800 (Tex. 1978). The federal court’s power relies upon

and flows from the state court’s power. The filing of a notice

of appeal is an event of jurisdictional significance which

divests the district court of control over a case as well as

jurisdiction. Griggs v. Provident Consumer Discount Co..,

459 U.S. 56, 58 (1982); Alpert v. Resolution Trust Corp. , No.

Se

12 IN THE MATTER OF MEYERLAND COMPANY

CIV. A. 91-B-1907 (D.Colo. June 19, 1992). The original

jurisdiction requirement of the general removal statutes

likewise precludes a federal district court from relitigating the

facts of the present case.

2. If Congress had intended to depart from the

ordinary removal procedural requirements, it would

have explicitly done so.

The FDIC contends that in enacting FIRREA,

Congress created a totally new power authorizing the removal

of a case on the eve of a state appellate court decision.

However, both the FDIC and the Fifth Circuit fail to address

why Congress enumerated specific exceptions to general

removal provisions if it in fact intended to create a wholly

independent procedural track. It would be unnecessary for

Congress to make specific exclusions if Congress had not

intended for the general removal principles to apply in all

circumstances. Woburn, 930 F.2d at 968; Federal Deposit

Ins. Corp. v. Loyd, 955 F.2d 316 (Sth Cir. 1992); Federal

Deposit Ins. Corp. v. Norwood, 726 F. Supp. 1073 (S.D.

Tex. 1989). Congress gave the FDIC a number of procedural

advantages through specific exceptions to the general removal

Statutes. Through these exceptions, the FDIC:

i) may appeal remand orders. See 12

U.S.C. § 1819(b)(2)(C). Ordinarily,

remand orders are not appealable. 28

U.S.C. § 1447(d) (1984).

il) may appeal regardless of whether it is

the plainuff or the defendant in the suit.

See 12 U.S.C. § 1819(b)(1)(A). General

removal statutes only permit removal by

defendants. See In re Franklin National

Bank Securities Litigation, 532 F.2d

IN THE MATTER OF MEYERLAND CO. 13

842, 845-46 (2d Cir. 1976).

iii) may file a notice of removal within

ninety days of the date it inherits the

claim of the failed savings institution.

See 12 U.S.C. § 1819(b)(2)(B).

Typically, a substituted party only has

thirty days to file a notice of removal.°

See 28 U.S.C. § 1446(b) (1984).

iv) need not file a bond or security to

remove a case. See 12 U.S.C. §

1819(6)(2)(B). Until 1988, the FDIC

had been required to post bond or

security. Judicial Improvements and

Access to Justice Act. Pub. L. No. 100-

702, 1988.

These specific exceptions from the general procedural rules

conspicuously illustrate the congressional intent behind

FIRREA. Firmly established procedural rules control when

no exceptions are explicitly drawn by Congress. Midlantic

Nat'l Bank, 474 U.S. 494; Lazuka v. Federal Deposit Ins.

Corp., 931 F.2d 1530, 1536 (11th Cir. 1991).

Apart from the specific exceptions, congressional intent

can also be understood by looking to references made to

general removal principles. For example, the word

“appropriate” in 12 U.S.C. § 1819(b)(2)(B) necessarily refers

* This provision was amended on December 19, 1991. FDIC

Improvement Act, Pub. L. No. 102-242 §161, 105 Stat. 2285 (1991).

In the orginal enactment of FIRREA, the RTC was given the ability

to file a notice of appeal within a ninety day period. The FDIC was

not given this benefit and therefore was subject to the general removal

time limit of thirty days. However, Congress responded by enlarging

the period of time to ninety (90) days. Why would this amendment be

necessary if FIRREA did not intend to otherwise rely upon general

removal statutes?

14 IN THE MATTER OF MEYERLAND COMPANY

to the venue provision of the general removal statute, 28

U.S.C. § 1441(a), because "appropriate" is not defined in

FIRREA. Woburn, 930 F.2d at 968.

These specific departures from established procedural

requirements clearly demonstrate the congressional intent to

rely upon general removal provisions.

B. FIRREA Provides No Basis for Federal Court

Jurisdiction Over Cases Pending in a State

Appellate Court.

The FDIC convinced the Fifth Circuit majority to

speculate and create an independent track which would

mandate a federal district court to “rubber stamp" the decision

of the state trial court or even more incredibly, to allow the

federal district court to vacate the final state court judgmenf

altogether. Jn re Meyerland Co., 960 F.2d 512, 525, n. 8

(Sth Cir. 1992). Neither of these approaches is based upon

the language or legislative history of FIRREA.

The FDIC cites two provisions of FIRREA which

purportedly allow federal court removal regardless of the

procedural status of the case within the state judicial process.

They are:

i) 12 U.S.C. § 1819(b)(2), which provides

that “the Corporation may .. .

remove any action, suit, or

proceeding from a State court to the

appropriate United States district court

(emphasis added)"; and

ii) 12 U.S.C. § 1821(d)(13)(i), which

provides that "(ijn the event of any

appealable judgment, the Corporation as

conservator or receiver shall have all

the rights and remedies available to the

insured depository institution (before the

appointment of such conservator or

IN THE MATTER OF MEYERLAND CO. 15

receiver) and the Corporation in its

corporate capacity, including removal to

federal court and all appellate rights

Contrary to the Fifth Circuit’s holding, neither provision

creates “out of whole cloth" a new category of federal district

court possessing original appellate jurisdiction. Under the

circumstances of this case, the federal district court was

powerless to exercise any meaningful original jurisdiction over

the case, and Judge Hoyt was correct in remanding the case

back to the state appellate court.

i. The language of 12 U.S.C. § 1819(b)(2) does not

authorize the removal of an action after the state

trial court loses plenary power over the action.

The gravamen of the Fifth Circuit’s majority en banc

opinion relies principally on the word “any” to support its

conclusion that a case can be removed at any stage of the state

appellate process. This language does not refer to the

procedural status of the litigation. Instead, as the dissent

correctly elucidates, it refers to the types of cases which the

FDIC may remove to federal court. In re Matter of

Meyerland Co., 960 F.2d at 523. This language does nothing

more than expand the federal court’s subject matter

jurisdiction to permit the FDIC to bring actions which,

because of their subject matter, would ordinarily have been

matters for the state courts. See Carrollton Farmers Branch

Independent School Dist. v. Johnson & Cravens, 889 F.2d

$71, 572 (Sth Cir. 1989), on remand to, 776 F. Supp. 1180

(N.D. Tex. 1991).

The FDIC’s contention that "any" means cases of any

procedural posture as well as any subject matter, also conflicts

with the legislative intent behind FIRREA. When FIRREA’s

removal provision was first submitted as an amendment in the

House of Representatives, it was described as vesting in the

16 IN THE MATTER OF MEYERLAND COMPANY

FDIC only "the authority to remove certain state court

proceedings to federal court." H.R. Rep. No. 54(1), 101st

Cong., Ist Sess., reprinted in 1989 U.S.Code Cong. &

Admin. News 86, 124-25 (discussing H.R. 1278, 101st

Cong., Ist Sess. (version 2 of May 18, 1989)) (emphasis

added). "Certain" state court proceedings does not mean any

state court proceedings. Congress intended to limit the

FDIC’s ability to remove only those cases over which a

federal district court had some meaningful original

jurisdiction. This approach harmonizes the language of 12

U.S.C. § 1819(b)(2)(B) with the intent of Congress in passing

FIRREA.

The cases relied on by the majority opinion of the Fifth

Circuit Court of Appeals as supporting post-judgment removal

are easily distinguished from this case. Each and every case

cited by the Fifth Circuit in the en banc opinion are ones over

which the state trial court still could exercise some meaningful

original jurisdiction.® While some of the cases cited involved

° Beighley v. Federal Deposit Ins. Corp., 868 F.2d 776 (Sth Cir.

1989) (motions to vacate the judgment and for a new trial were still

pending in state trial court when the suit was removed, so district court

still had power to grant Rule 60 relief); Jn re Savers Federal Sav. &

Loan Ass'n, 872 F.2d 963 (11th Cir. 1989) (no appeal filed as of yet

and Rule 60 relief was still available); Federal Deposit Ins. Corp. v.

Taylor, 727 F. Supp. 326, 328 (S.D. Tex. 1989) (judgment entered

Jan. 27, 1989 and case removed an April 26, 1989); Union Federal

Bank of Indianapolis v. Minyard, 919 F.2d 335 (Sth Cir. 1990) (motion

for new trial was pending when removed); Murray v. Ford Motor Co.,

770 F.2d 461 (Sth Cir. 1985) (Rule 60(b)(1) relief was still available);

Northshore Development, Inc. v. Lee, 835 F.2d 580 (Sth Cir. 1988)

(FSLIC was seeking 60(b) relief); Azzopardi v. Ocean Drilling &

Exploration Co. , 742 F.2d 890 (Sth Cir. 1984) (district court set aside

default judgment); Federal Deposit Ins. Corp. v. Ritchie, 646 F. Supp.

1581 (D. Neb. 1986) (district court found relief to set aside judgment

was still available); Munsey v. Testworth Laboratories, 227 F.2d 902

(6th Cir. 1955) (district court set aside default judgment); Vernon Sav.

and Loan Ass'n v. Commerce Sav. and Loan Ass'n, 677 F. Supp. 495

IN THE MATTER OF MEYERLAND CO. 17

actions pending in a state appellate court,’ in each of those

cases, the time had not yet expired for the trial court to grant

relief from the final judgment. Because the trial court could

have altered, vacated, or otherwise reconsidered the judgment,

those cases could be properly removed. Ward v. Resolution

Trust Corp., 91-3015EA (8th Cir. July 30, 1992) (Rule 60(b)

yet to be ruled on by the federal district court).

In our case, due to the amount of time that passed

since judgment was entered, the federal district court could no

longer exercise any original jurisdictional powers under Rule

60(b). This is the distinction drawn by Chief Judge Politz and

four other members of the Fifth Circuit in their dissenting

opinion. In re Meyerland Co., 960 F.2d 512, 526 (Sth Cir.

1992). The district court, and the dissenting members of the

Fifth Circuit, correctly recognized that a case can not be

removed to federal court once the district court loses the

power to reconsider the merits of the state claims under Rule

60(b) of the Federal Rules of Civil Procedure. As such,

(N.D. Tex. 1988) (removed prior to case determination on the merits).

” Federal Deposit Ins. Corp. v. Yancey Camp Development, 889

F.2d 647 (Sth Cir. 1989) (could still be vacated under Rule 60(b) at

time of removal); Jackson v. American Sav. Mortg. Corp., 924 F.2d

195 (11th Cir. 1991) (judgment entered March 20, 1989, case removed

on June 21, 1989, Rule 60 relief still available); Addison Airport of

Texas, Inc. v. Eagle Investment Co., 691 F.Supp. 1022 (N.D. Tex.

1988) (removed a de novo appeal from state county court).

* Rule 59 of the Federal Rules of Civil Procedure sets a ten day

time limit from the date judgment was entered to file a motion for new

trial, for a judgment non obstento verdicto or for an amendment to the

judgment. Rule 60(b) of the Federal Rules of Civil Procedure places

a one-year limitation from the date of judgment for a party to file a

motion for relief from a judgment. Rule 6(b) of the Federal Rules of

Civil Procedure provides that the court may not extend the time

limitations set forth in either Rule 59 or Rule 60. The only exception

to the mandatory provisions of Rule 6(b) is for “unique circumstances. “

18 IN THE MATTER OF MEYERLAND COMPANY

Judge Hoyt properly remanded the case to the state appellate

court.

2. An action pending in a state appellate court is not

"appealable" within the meaning of 12 U.S.C. §

1821(d)(13).

The FDIC has wrongfully asserted that this provision

independently allows for removal jurisdiction over matters

pending in state appellate courts. Judge Duhe’ admitted

§ 1821(d)(13) does not establish that the FDIC may remove a

case on appeal. Jn re Meyerland Co., 960 F.2d 512, 516 n.

7 (5th Cir. 1992).

A clear reading of the statute fails to support the

FDIC’s position as it specifically requires the FDIC to “abide

by a final unappealable judgment of any court of competent

jurisdiction which was rendered before the appointment of the

Corporation as receiver" (emphasis added). 12 U.S.C.

§ 1821(d)(13). Subsection B of the provision provides that,

with respect to an “appealable" judgment, the FDIC has the

same rights of the insured institution before appointment of the

receiver, "including removal to federal court and all appellate

rights."

In FIRREA, the proper construction of "appealable"

necessarily refers to the capacity for appeal, not the existence

of a prior appeal. The only judgment which may be removed

for further proceedings in federal court is one from which the

time for appeal has not already expired. In the present case,

the time for appeal had expired 13 months prior to the

FSLIC’s intervention in this dispuie. Tex. R. App. P. 46.

Under this exception, a party who has detrimentally relied on action

taken by the Court and as a result of that reliance has missed the

relevant time deadlines may be granted additional time to file a motion.

See Thompson v. Immigration and Naturalization Service, 375 U.S. 384

(1964), on remand to, 323 F.2d 167 (7th Cir. 1964). These conditions

are not present here.

IN THE MATTER OF MEYERLAND CO. 19

Additionally, the term "appellate rights" refers to state

as well as federal appeals. These rights depend upon the

posture of the case at the time of removal. Granny Goose

Foods, Inc. v. Brotherhood of Teamsters and Auto Truck

Drivers Local No. 70 of Alameda County, 415 U.S. 423

(1974). If at the time of removal, the state court judgment is

appealable, but has not yet been appealed, appellate rights

may be pursued in either the state or federal system. If,

however, the case has already been appealed in the state court

system, the "appellate rights" refers to those being pursued in

State appellate courts. Griggs, 459 U.S. at 58. In the present

case, the failed savings institution did not have any removal

rights, but chose to exercise its state appellate rights prior to

the receivership.

The legislative history behind 12 U.S.C. § 1821(d)( 13)

also illustrates the congressional intent of Congress in passing

this provision. Section 212 of FIRREA, now codified at 12

U.S.C. § 1821(d)(13), includes the following language:

Section 212(5) defines the FDIC’s authorities

and duties as conservator or receiver. The

authorities essentially parallel those heretofore

exercised by the FSLIC and the FDIC, and are

designed to give the FDIC power to take all

action necessary to resolve the problems posed

by a financial institution in default.

House Report 101-54(1), p. 330, U.S.Code Congressional and

Administrative News, 10lst Cong. 1989, Vol. 2, p. 330.

This indicates Congress intended FIRREA to continue, not

expand, the powers the FSLIC and the FDIC had previously

exercised.

The failed savings institution could not remove the case

to federal court before the FDIC intervened. The FDIC

inherits whatever rights the insured bank has on appeal, and

no more. Since an insured bank has no power to remove a

pending appeal, neither can the FDIC. Federal Deposit

20 IN THE MATTER OF MEYERLAND COMPANY

Ins. Corp. v. Sellards, 731 F. Supp. 1300 (N.D. Tex. 1990).

The reasoning of the Fifth Circuit departs from the normal

course of judicial proceedings and _ highlights the

appropniateness of review of this important question of federal

law.

II. IN THE ALTERNATIVE, THE FIFTH CIRCUIT

ERRONEOUSLY HELD THAT THE UNITED

STATES CONSTITUTION ALLOWED A

FEDERAL DISTRICT COURT TO EXERCISE

REMOVAL JURISDICTION OVER A CASE

PENDING IN ANY PHASE OF A STATE

APPELLATE PROCESS.

If FIRREA stands for the legal proposition advanced

by the FDIC and upheld by the Fifth Circuit Court of

Appeals, the statute is repugnant to the United States

Constitution. Lower federal courts possess no power to sit in

direct review of state court decisions. Atlantic Coast Line Ry.

Co. v. Brotherhood of Locomotive Eng’rs., 398 U.S. 281

(1970). In fact, the only federal tribunal with the power to sit

in review of state court judgments is this Honorable Court.

When the case is removed to a federal district court

and the state court can no longer exercise original jurisdiction,

the district court can be nothing more than a “rubber stamp"

on the state court action. This is not a constitutional function

of a United States District Court. Nevertheless, the Fifth

Circuit offered two alternatives to circumvent this

constitutional deficiency. First, a federal district court could

blindly adopt the judgment of the state district court as its

own. Second, a federal district court could entertain a Rule

59 or Rule 60 motion for relief from the state

IN THE MATTER OF MEYERLAND CO. 21

court judgment.

Both approaches gloss over the constitutional

impediments posed by the facts of this case. The state trial

court entered the judgment on May 26, 1987. This case was

not removed by the FDIC until September 7, 1989.° As a

result of the passage of time, Rule 59 and Rule 60 relief is not

available. The trial court, and therefore the federal district

court, is without any meaningful original jurisdiction.

Federal courts are courts of limited jurisdiction.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803);

Immigration and Naturalization Serv. v. Chadha at 942. They

may only exercise that power authorized by Article III of the

United States Constitution, and those specific statutes enacted

by Congress pursuant to Article III. Bender v. Williamsport

Area School Dist., 475 U.S. 534 (1985). Unless a dispute

falls within the confines of the jurisdiction conferred by

Article III and Congress, the federal court has no authority to

issue any orders regarding its resolution. Giannakos v. M/V

Bravo Trader, 762 F.2d 1295 (Sth Cir. 1985). Additionally,

a Statute conferring federal removal jurisdiction must comport

with the protection afforded by other provisions of the

Constitution.

This Court has created rules of justiciability which

further limit the jurisdiction of the federal court. In defining

the subject matter jurisdiction of federal courts, Article III

provides that a federal court can only consider the merits of

a case or controversy. This Court has defined "case" and

“controversy” by looking to the concepts of justiciability, such

as standing, mootness, ripeness, and abstention. These

principles require a federal district court to refrain from

considering the merits of an appeal. This Court has fashioned

such doctrines as self-imposed restraints on the federal courts

in deference to the constitutional authority of the states.

Atlantic Coast Line, 398 U.S. 281; see also Evans, supra

* This case was first removed by FSLIC on October 26, 1988, and

remanded to the state appellate court on April 24, 1989.

22 IN THE MATTER OF MEYERLAND COMPANY

at 16.

Under the procedures established by the Fifth Circuit

for removed "appeals," no justiciable case or controversy

would be presented to the federal district court. The district

court would have no power to act on the removed "appeal" in

any meaningful fashion. The district court would only adopt

the actions of the state court rendering the judgment in

question, regardless of whether that judgment was appropriate

or allowed by law. Thus, a federal district court could be

presented with an unconstitutional application of law and have

absolutely no choice but to accept the state court’s judgment

as its Own.

A. Concepts of Comity and Federalism Require that a

Federal Court Refrain from Exercising Appellate

Jurisdiction Over Final State Court Judgments.

One of the benefits of our dual court system is the

principle that a federal court will give “full faith and credit"

to judgments from state courts. U.S. Const. art. IV, § 1.

Ordinarily, this concept ensures that a citizen from one state

will enjoy the same general rights in another state. However,

it also prevents a federal court from ignoring the res judicata

effect of a state court action in a federal forum. See Kremer

v. Chemical Const. Corp. , 456 U.S. 461 (1982), reh’g denied,

458 U.S. 1133 (1982). A federal court should accept the

rules chosen by a state court from which the appeal is taken.

Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813).

This constitutional principle ensures that a federal court

should give the same preclusive effect to a state court

judgment as another court of that state would give. Parsons

Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986),

on remand to, 758 F.2d 929 (11th Cir. 1986), on remand to,

NO. Civ. A. 83V-181-N (M.S. Ala., 1986), j. aff'd, 825 F.2d

1475 (11th Cir. 1987), cert. denied, 484 U.S. 1060 (1988).

Federal courts may not "employ their own rules of res

judicata in determining the effects of state court judgments. ’"

Id. at 523. The Constitution demands a federal court accept

IN THE MATTER OF MEYERLAND CO. 23

the rules chosen by the State from which the judgment is

taken. Jd., at 523 (quoting Kremer, 456 U.S. at 461).

In Texas, this case could not be retried on the merits

unless the case was remanded back to the trial court. The

issues would be barred by the doctrine of res judicata and

collateral estoppel. Mitchell v. Carter, 545 S.W.2d 869

(Tex.Civ.App.--Waco 1977); Corpus Christi Taxpayers Ass’n

v. City of Corpus Christi, Texas, 858 F.2d 973 (Sth Cir.

1988), reh’g denied, 860 F.2d 437, cert. dism’d, 490 U.S.

1032, cert. denied, 490 U.S. 1065. Under the full faith and

credit clause of Article IV § 1, both sister state and federal

courts should defer to Texas’ ability to make substantive

decisions about its own laws. See Federal Savings and Loan

Ins. Corp. v. Templeton, 700 F. Supp. 456 (S.D. Ind., 1988).

Texas’ interests in enforcing its judgments are so

important that the exercise of federal power would disregard

the comity between states and the national government.

Huffman v. Pursue, Ltd., 420 U.S. 592, 603 (1975), reh’g

denied, 421 U.S. 971 (1975); Coyle v. Oklahoma, 221 U.S.

559, 565 (1911); Marcal Paper Mills, Inc. v. Ewing, 790

F.2d 195, 196 (1st Cir. 1986). The Fifth Circuit refused to

defer to Texas’ right to determine its own substantive law and

instead returned the case to federal district court, contradicting

this Court’s holdings in both Gregory and Evans. The Fifth

Circuit has failed to give full faith and credit to the judgment

of the Texas courts and has forced the parties to begin anew

in federal court. This constitutional infirmity in the Fifth

Circuit’s holding begs review of this decision.

B. The Tenth Amendment Obligates Congress and

Federal Courts to Respect a Final State Court

Judgment

Any exercise of jurisdiction over final state court

judgments would necessarily violate the provisions of the

Tenth Amendment:

The powers not delegated to the United States

24 IN THE MATTER OF MEYERLAND COMPANY

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.

U.S. Const. amend. X.

The Fifth Circuit has forced United States District

Judge Hoyt to ignore the finality of the state judgment and

reexamine the validity of the verdict rendered by a jury. This

severely impacts a state’s right of sovereignty under the Tenth

Amendment to protect its citizens and enforce the judgments

of its court system.

This is a case of great concern for states in our

federalist system as it questions the ability of a state to protect

its judicial system by enforcing its judgments. If a federal

court is free to disregard the preclusive effect of a final state

court judgment, then the principles behind the Tenth

Amendment are completely ignored. Indeed the very concepts

of constitutional law and federalism are called into question,

as enunciated in Evans v. U.S., 112 S.Ct. 1881, 1901 (1992).

c. The Seventh Amendment Precludes Federal

Reexamination of a Final State Judgment.

The Fifth Circuit’s decision violates protection afforded

by the Seventh Amendment:

[No fact tried by a jury shall be otherwise

reexamined in any Court of the United States,

than according to the rules of common iaw.

U.S. Const. amend. VII. By allowing removal after the case

has already been tried by a state jury, the Fifth Circuit permits

lower federal courts to reexamine the judgment. The common

law recognizes only two modes by which facts may be

reexamined: the granting of a motion for new trial; and the

award of a venire facias de novo. See Parsons v. Bedford,

Breedlove & Robeson, 28 U.S. (3 Pet.) 433 (1830). Neither

IN THE MATTER OF MEYERLAND CO. 25

is present here. As there is no basis for the lower federal

court to reexamine facts tried by the jury, the Fifth Circuit

erroneously authorized the federal district court to reconsider

facts previously resolved by the state trial court and jury in

violation of the Seventh Amendment to the United States

Constitution.

CONCLUSION

This Court should review the Fifth Circuit’s judgment

and en banc opinion. General removal statutes and the

language of FIRREA fail to confer removal jurisdiction over

actions pending in state appellate courts two years and three

months after a final state judgment has been entered.

Additionally, even if Congress intended this absurd result,

such a procedural track would necessarily violate provisions

of the United States Constitution. As such, petitioners

respectfully request that this Court review the Fifth Circuit's

judgment and en banc opinion.

Respectfully submi

MIKE O’BRIEN

Mike O’Brien, P.C.

440 Louisiana

Suite 2300

Houston, Texas 77002

Tel. (713) 222-0088

FAX (713) 222-6903

26 IN THE MATTER OF MEYERLAND COMPANY

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this petition for

writ of certioramn of MEYERLAND COMPANY and

WILLIAM MICHAEL ADKINSON was sent by first class

mail, postage pre-paid on this 11th day of August, 1992 to all

counsel of record.

IKE O’BRIEN

IN THE MATTER OF MEYERLAND CO.

TABLE OF APPENDICES

APPENDIX A

I a re

APPENDIX B

er

APPENDIX C

a a a a

APPENDIX D

IE LS ko 5 0 os we wee

APPENDIX E

Order for Stay Pending Reconsideration .........

APPENDIX F

CO eee ee

APPENDIX G

sg ny 5 a & 4 6 058-wre eke

APPENDIX H

Order of Rehearing En Banc ................

APPENDIX I

Order Dismissing Appeal for

ee i ra

APPENDIX J

Judgment on Rehearing En Banc ..............

APPENDIX K

Ee ae

27

28 IN THE MATTER OF MEYERLAND COMPANY

APPENDIX L

ne hg a a as 6 eave Sa 8}

APPENDIX M

EO Rares er eae oe ee 82

APPENDIX N

a i a ea eee eee 84

APPENDIX O

sg 4 a ub ea ee ee 85

APPENDIX P

oon. -« & wine ho eee ee 87

APPENDIX Q

5k 3): OS er eae No meters eee 90

APPENDIX R

eT ol lo os ae oy 6 ale Se a 92

APPENDIX S

Sa od Aw a we 6 be ete ee 93

APPENDIX T

ie We OE EMULEAD 5 be vee ca ees ee eee 97

IN THE MATTER OF MEYERLAND CO. la

(APPENDIX A)

En Banc Opinion

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.

United States Court of Appeals, Fifth Circuit.

No. 89-6118

May 13, 1992

Appeal from the United States District Court

For the Southern District of Texas.

Before Politz, Chief Judge, REYNALDO G. GARZA, KING,

GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, SMITH,

DUHE, WIENER, EMILIO M. GARZA and DeMOSS,

Circuit Judges.'

DUHE’, Circuit Judge:

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

2a IN THE MATTER OF MEYERLAND COMPANY

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 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)

? 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 (Sth 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 Jn re Resolution Trust Corp., 888 F.2d 57,

58 (8th Cir. 1989).

IN THE MATTER OF MEYERLAND CO. 3a

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 ways 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(1), 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 regulation 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. $381, $382

(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 relation to removal,

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.

4a IN THE MATTER OF MEYERLAND COMPANY

(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).°

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 (Sth Cir.1989). See

also Jameson v. FDIC, 931 F.2d 290, 291 (Sth Cir. 1991)

(FIRREA extends FDIC’s jurisdiction to include persons no

longer affiliated with insured institutions); FDIC v. Griffin,

935 F.2d 691, 696 (Sth 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.* See Smallwood v.

> 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. *

“ 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-

IN THE MATTER OF MEYERLAND CO. Sa

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,’ the dissent relies upon the

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 Texas.

Those same two states absorbed 54 percent of FSLIC expenditures in

1987." H.Rep. No. 101-54(1), 10ist Cong., 1st Sess. at 297, reprinted

in 1989 U.S.Code Cong. & Admin. News at 93.

* 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 (Sth

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

6a IN THE MATTER OF MEYERLAND COMPANY

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 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).°

and removal jurisdiction over the FDIC was proper only if the case fell

within the ambit of § 1819. Jd. 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.

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 Saveil

IN THE MATTER OF MEYERLAND CO. 7a

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 piain 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.

34, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982).

The Supreme Court recently re-affirmed 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 this is one

of those rare cases where the application of the statute as

written will produce a result ‘demonstrable at odds with the

intentions of its drafters.’" Jd. 111 S.Ct. at 604. We agree

that, on its face, the language of 12 U.S.C. § 1819(b)(2)(B)

V. Southern Ry., 93 F.2d 377, 379 (Sth 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 modem

understanding, removing this case does not constitute the appeal of a

State court judgment to federal court.

8a IN THE MATTER OF MEYERLAND COMPANY

allows removal at the procedural posture in which this case

comes to us.’ 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 Jn 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 deniai of post-trial

motions for hearing, new trial, and remittitur, the FSLIC was

’ The FDIC contends that the language of 12 U.S.C. §

1821(d)(18)(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.

IN THE MATTER OF MEYERLAND CO. 9a

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 granted mandamus and

vacated the remand on the basis of § 1819 (b)(2)(B).

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

State 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 (Sth 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. Yancy Camp

Development, 889 F.2d 647, 648 (Sth Cir. 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.

10a IN THE MATTER OF MEYERLAND COMPANY

While it is black letter law than “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,® and we must decide

whether it has done so by enacting the FDIC removal statute.

S. The FDIC Removal Statute.

. History

Special considerations arise because § 1819 is a

jurisdictional _ statute. Jurisdictional statutes must be

interpreted with an eye towards history.’ The opponents

“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 appeai, such case.")

*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.

IN THE MATTER OF MEYERLAND CO. lla

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

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, 108 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).

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.

12a IN THE MATTER OF MEYERLAND COMPANY

Congress, however, did not actually grant the lower

federal courts removal jurisdiction over federal question cases

until 1875.'° 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. /d. 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 (Sth

Cir. 1988), appeal after remand, 915 F.2d 965 (Sth Cir. 1990),

aff'd -- U.S.--, 112 §.Ct. 1076, 117 L.Ed.2d 280 (1992). See

also Collins, The Unhappy History of Federal Question

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

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

Act of March 3, 1875, ch. 187, §2, 18 Stat. 470.

IN THE MATTER OF MEYERLAND CO. 13a

(1936) (for a suit to “arise under" federal law, a “right of

immunity created by the Constitution or laws of the United

States must be an element, and an essential one, of 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 (Sth 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 broader 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.

ra Other Procedural Advantages in FIRREA.

We recently recognized an important way FIRREA

increases the FDIC’s post-judgment powers in RIC v.

McCrory, 951 F.2d 68, 71 (Sth 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 (Sth 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);

l4a IN THE MATTER OF MEYERLAND COMPANY

FDIC v. Castle, 781 F.2d 1101, 1106 (Sth 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 (Sth

Cir.1991), and cases cited therein. FIRREA confers a

powerful litigation weapon by making such usually untimely

arguments available to the FDIC, but see Bawmann 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." /d.'' Although this is not

'' Additionally, it is even possible for parties other than the FDIC

to remove an action once the FDIC becomes a party. FDIC v. Otero,

$98 F.2d 627 (ist Cir. 1979).

IN THE MATTER OF MEYERLAND CO. Sa

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 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

16a IN THE MATTER OF MEYERLAND COMPANY

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 (Sth Cir.1988) (district 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 (Sth 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 (Sth 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 is 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.’

'2 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

IN THE MATTER OF MEYERLAND CO. 17a

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 §.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 that 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 that 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 (Sth Cir.1992) (28

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

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.

18a IN THE MATTER OF MEYERLAND COMPANY

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 80-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

IN THE MATTER OF MEYERLAND CO. 19a

Corporation may, without bond or security,

remove any action, writ 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

20a IN THE MATTER OF MEYERLAND COMPANY

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

IN THE MATTER OF MEYERLAND CO. 21a

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),' the FDIC removed the cause. Our district

court again remanded and imposed $2500 in sanctions upon

the FDIC. The FDIC timely appealed.”

FIRREA expands the original and removal jurisdiction

' 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 (Sth Cir. 1989); see also Kirkbride v. Continentai

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).

? Although remand orders generally are not appealable, 12 U.S.C.

§ 1819(b)(2)(C) authorizes appeal by the FDIC.

22a IN THE MATTER OF MEYERLAND COMPANY

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 (Sth Cir.1989); Triland

Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205 (Sth

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

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

IN THE MATTER OF MEYERLAND CO. 23a

district court.’

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

comerstone of federal jurisdiction to federal district courts

does not include the power to review final state court

judgments.* 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 the 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

* Subparagraph (D) is inapplicable to the present inquiry.

“Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68

L.Ed. 362 (1923).

24a IN THE MATTER OF MEYERLAND COMPANY

to the district court but has, instead, expressly permitted filing

directly in the courts of appeals. 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 the original jurisdiction limitation. Compare 12

U.S.C. § 1819 (6)(2)(B) (“any action, suit, or proceeding

* 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. § 110S5a (Immigration and

Naturalization Service order reviewed pursuant to 28 U.S.C. § 2341 er

seq.); 29 U.S.C. § 160(f) (National Labor Relations Board orders

reviewed by courts of appeals); and, 18 U.S.C. § 843(d)(2) (Secretary

of Treasury licensing decisions reviewed by courts of appeals). See

also 16 U.S.C. § 8251 (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).

IN THE MATTER OF MEYERLAND CO. 25a

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 statues, 28 U.S.C. §§ 1441-

1451.° 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 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 non-existent. 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.’ Further,

* See, -.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).

” 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. $82, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949),

26a IN THE MATTER OF MEYERLAND COMPANY

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

today’s holding, one which requires a notice of appeal and one

which does not.* Both of these alternatives are in conflict

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, 189-88 (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 Lincoin Mills Case, 71 Harv.L.Rev. 1, 21 (1957); C.Wright,

supra. at 110-11.

In addition “in 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.

* 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:

IN THE MATTER OF MEYERLAND CO. 27a

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. Vv.

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-lwai American Corp.

v. Kline, 845 F.2d 1300, 1303 (5th Cir. 1988) (quoting Savell

v. Southern Ry., 93 F.2d 377, 379 (Sth 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

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. Morrg.

Corp., 924 F.2d 19S (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.

28a IN THE MATTER OF MEYERLAND COMPANY

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 precincts

of a powerless district court judge. Appellate jurisdiction is

just one example of the attendant clashes between state an

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 is pending

before the state’s highest court or, even more startling, 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 discretionary 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

IN THE MATTER OF MEYERLAND CO. 29a

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 (Sth

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 (Sth 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

(Sth 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

30a IN THE MATTER OF MEYERLAND COMPANY

v. Ocean Drilling & Exploraiton Co., 742 F.2d 890 (Sth 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(1), 101st Cong. Ist

Sess., reprinted in 1989 U.S.Code Cong. Admin.News 86,

124-25 (discussing H.R. 1278, 101st Cong., lst Ses. (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.

IN THE MATTER OF MEYERLAND CO. 31a

(APPENDIX B)

Trial Court Judgment

MEYERLAND COMPANY and WILLIAM M.

ADKINSON

v.

CONTINENTAL SAVINGS ASSOCIATION

In the District Court of Harris County, TEXAS

269th Judicial District

No. 86-36700

May 26, 1987

JUDGMENT

BE IT REMEMBERED that on the 23rd day of

March, 1989, the above-captioned cause came on to be

heard for trial with all parties having agreed to such trial

setting and to the assignment of this cause to this Court for

trial. All parties appeared either in person or by and

: through their counsel of record and announced ready for

trial. After hearing various preliminary matters, the Court

empaneled a Jury of twelve without objection by any party.

The Court and Jury thereupon heard the evidence

and argument of counsel through April 29, 1987, on which

date Plaintiffs Meyerland Company and William M.

Adkinson rested their case-in-chief. Defendant Continental

Savings Association thereupon moved for a directed verdict,

> in © tee ZS ttt eo eee i oh i

32a IN THE MATTER OF MEYERLAND COMPANY

which motion was granted in part and denied in part.

The trial then continued with the presentation of the

Defendant’s case-in-chief until May 6, 1989, on which date

the Defendant rested. Plaintiffs then moved for a directed

verdict, which motion was in all things denied. The trial

continued with the presentation of the Plaintiffs’ rebuttal

case on May 6, 1989, at the conclusion of which all parties

rested.

The trial then stood in recess while the Court

prepared its Charge to the Jury. On May 11, 1987, after

hearing the objections of all parties to the Charge, the Court

charged the Jury and permitted the parties to present their

summations of the evidence. The Jury then retired to

deliberate until May 13, 1987, on which date the Jury

returned its Verdict in open court. No objections were

made to the Verdict and all parties moved the Court to

receive and file the Verdict, which motions were granted.

The verdict of the Jury in answer to the special

Issues presented to it (omitting instructions, definitions and

such Issues as were not answered on the Court’s

instructions predicating certain Issues on previous answers)

were as follows:

SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence

that First Western Equity, Inc. was an agent for Meyerland

Company in connection with the purchase of the Loan

Participations?

ANSWER: Yes

SPECIAL ISSUE NO. 2

Do you find from a preponderance of the evidence

i i i i ia si rs, inl

IN THE MATTER OF MEYERLAND CO. 33a

that, prior to February 3, 1986, Continental Savings knew

that First Western Equity, Inc. was acting as an agent, if it

was, for Meyerland Company in connection with the

purchase of the Loan Participations?

ANSWER: No

SPECIAL ISSUE NO. 3

Do you find from a preponderance of the evidence

that Meyeriand Company or First Western Equity, Inc.

knew that Continental Savings would not have made the

Loan in Question had Continental known that First Western

Equity, Inc. was acting as agent for Meyerland Company in

connection with the purchase of the Loan Participations?

ANSWER: No

SPECIAL ISSUE NO. 4

Do you find from a preponderance of the evidence

that the money for the purchase prices of the Loan

Participations came from the proceeds of the Loan in

Question?

Loan Answer

a Riddle/Crows Nest, Inc: -

Crows Nest Yes

y The Park, A Texas Joint

Venture - The Park Yes

3. Robert R. Burchfield, Trustee -

Crown Park Plaza I Yes

F

34a IN THE MATTER OF MEYERLAND COMPANY

4. Robert R. Burchfield, Trustee -

Crown Park Plaza II Yes

SPECIAL ISSUE NO. 5

Do you find from a preponderance of the evidence

that the money for the down payment for the purchase of

the R.E.O. came from the proceeds of the Loan in

Question?

Tract Answer

l. Fayette County Property Yes

pe Casselwood Apartments Yes

De Flagridge Property Yes

4. Continental Savings Building Yes

SPECIAL ISSUE NO. 6

Do you find from a preponderance of the evidence

that Continental Savings used the Meyerland Company $1

Million savings account to pay to itself interest on loans in

which Harry Terry was involved?

ANSWER: Yes

SPECIAL ISSUE NO. 7

Do you find from a preponderance of the evidence

that, in connection with their business dealings leading up to

the Loan in Question, the purchase of the Loan

Participations and the R.E.O. and the Terry Transaction,

IN THE MATTER OF MEYERLAND CO. 35a

from the Fall of 1985 through February of 1986,

Continental Savings entered into a confidential relationship

with Meyerland Company or Mr. Adkinson or both?

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: No

SPECIAL ISSUE NO. 12

Do you find from a preponderance of the evidence

that Continental Savings, as a condition to the funding of

the Loan in Question, required Meyerland Company to use

$8,355,000 to pay for the purchase of the Loan

Participations?

ANSWER: No

SPECIAL ISSUE NO. 13

Do you find from a preponderance of the evidence

that Continental Savings, as a condition to the funding of

the Loan in Question, required Meyerland Company to use

$1,742,961.26 to pay the down payments for the purchase

of the R.E.O.?

ANSWER: No

SPECIAL ISSUE NO. 14

Do you find from a preponderance of the evidence

that Continental Savings, as a condition to the Loan in

Question, required the purchase of the Loan Participations?

ANSWER: Yes

36a IN THE MATTER OF MEYERLAND COMPANY

SPECIAL ISSUE NO. 15

Do you find from a preponderance of the evidence

that Continental Savings, as a condition to the Loan in

Question, required the purchase of the R.E.O.?

ANSWER: Yes

SPECIAL ISSUE NO. 16A

Do you find from a preponderance of the evidence

that Meyerland Company had the purpose and

contemplation that the Loan in Question involved a

deceptive device?

ANSWER: Yes

SPECIAL ISSUE NO. 16B

Do you find from a preponderance of the evidence

that Continental Savings did not have the purpose and

contemplation that the Loan in Question involved a

deceptive device?

ANSWER: No

SPECIAL ISSUE NO. 17

Do you find from a preponderance of the evidence

that Meyerland Company is estopped to claim that the Loan

in Question is usurious?

ANSWER: No

SPECIAL ISSUE NO. 18

IN THE MATTER OF MEYERLAND CO. 37a

Do you find from a preponderance of the evidence

that Meyerland Company waived its right to claim that the

Loan in Question is usurious?

ANSWER: Yes

SPECIAL ISSUE NO. 19

Do you find from a preponderance of the evidence

that Continental Savings defrauded Meyerland Company or

Mr. Adkinson or both by making false representations

regarding the value or effect of the Loan Participations, the

R.E.O. or the Terry Transaction?

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: Yes

SPECIAL ISSUE NO. 20

What sum of money, if any, do you find from a

preponderance of the evidence would fairly and reasonably

compensate Meyerland Company or Mr. Adkinson for its

actual damages, if any, proximately caused by the fraud, if

any, Committed by Continental Savings?

ANSWER as to Mr. Adkinson: $1,000,000.00

SPECIAL ISSUE NO. 23

Do you find from a preponderance of the evidence

that the representations in the Opinion Letters were intended

by Meyerland Company or Mr. Adkinson or both to be

relied upon by Continental Savings?

ANSWER as to Meyerland Company: Yes

38a IN THE MATTER OF MEYERLAND COMPANY

ANSWER as to Mr. Adkinson: Yes

SPECIAL ISSUE NO. 24

Do you find from a preponderance of the evidence

that Continental Savings relied upon such representations in

making the Loan in Question?

ANSWER: Yes

SPECIAL ISSUE NO. 25

Do you find from a preponderance of the evidence

that Robert Collins, acting as attorney for Meyerland

Company and Mr. Adkinson in connection with the Loan in

Question, knew or should have known whether the Loan in

Question was or was not usurious?

ANSWER: Yes

SPECIAL ISSUE NO. 26

Do you find from a preponderance of the evidence

that in order to secure a loan from Continental Savings,

Meyerland Company or Mr. Adkinson knowingly

misrepresented any of the following facts, intending them to

be relied upon by Continental savings and which were in

turn relied upon by Continental Savings to the detriment of

Continental Savings?

a. That Meyerland Company and Mr. Adkinson were

financially secure?

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: No

IN THE MATTER OF MEYERLAND CO. 39a

That the financial statements delivered to Continental

Savings were true and correct in all material respects

and prepared in accordance with generally accepted

accounting principles consistently applied?

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: No

That the financial statements delivered to Continental

Savings fully and accurately presented the financial

condition of Meyerland Company as of the dates

thereof and no material adverse change has occurred

in the financial condition reflected in the financial

Statements prior to the closing of the transaction?

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: No

That Meyerland Company would expend all proceeds

for the purposes specified in securing the loan and

for no other purpose?

ANSWER: No

That Meyerland Company would make all payments

due on the Loan in Question?

ANSWER: No

That First Western Equity, Inc. was purchasing the

Loan Participations for its own (that is, First

Western Equity’s) account?

ANSWER: No

40a IN THE MATTER OF MEYERLAND COMPANY

SPECIAL ISSUE NO. 29

Do you find from a preponderance of the evidence

that Meyerland Company or Mr. Adkinson delayed for an

unreasonable length of time before asserting their claims in

this case and that Continental Savings was disadvantaged by

such delay? __

ANSWER as to Meyerland Company: No

ANSWER as to Mr. Adkinson: No

All parties moved the Court to enter a Judgment

upon certain various terms.

Pursuant to the stipulation of all parties, all questions

of fact and law regarding Defendant’s prayer for attorneys’

fees were submitted to the Court. The Court, after hearing

evidence on such matters, hereby finds and concludes that

Defendant Continental Savings Association is entitled to

recover attorneys’ fees as follows:

- $230, 423.50 as attorneys’ fees for services

rendered at the District Court level;

- $75,000.00 as attorneys’ fees in the event of

an appeal here.

-- $15,000.00 as attorneys’ fees in the event an

application for writ of error to the Texas

Supreme Court is filed in connection with this

cause; and

- $10,000.00 as attorneys’ fees in the event an

application for writ of error is granted by the

Texas Supreme Court in connection with this

cause.

IN THE MATTER OF MEYERLAND CO. 4la

Based upon the verdict of the Jury and such findings

of fact and conclusions of law as the Court is entitled to

make, the Court finds as follows: that

Defendant/Counterplaintiff Continental Savings Association

is entitled to recover the sum of $30,031,089.99 from

Counterdefendants Meyerland Company and William

Michael Adkinson, jointly and severally; that Plaintiff

William Michael Adkinson is entitled to an offset against

such award in the amount of $1,124, 109.50; that under the

circumstances said offset should apply to reduce the

indebtedness owed by Plaintiff Meyerland Company also;

and that the total judgment should include the first award of

attorneys’ fees found above.

The Court does not grant the motions for judgment

of any party in toto but hereby grants the same to the extent

reflected in this Judgment but otherwise denies the same. It

is accordingly

ORDERED, ADJUDGED and DECREED that

Defendant Continental Savings Association as

Counterplaintiff have and recover, and there is hereby

awarded to it, the total sum of TWENTY-NINE MILLION

ONE HUNDRED THIRTY SEVEN THOUSAND FOUR

HUNDRED THREE AND 99/100 DOLLARS

($29, 137,403.99) against Plaintiffs/Counterdefendants

Meyerland Company and William M. Adkinson, jointly and

severally. This award shall bear post-Judgment interest at a

rate of 18%/annum. It is further

ORDERED, ADJUDGED and DECREED that

Defendant/Counterplaintiff Continental Savings Association

have judgment and recover from Meyerland Company or

William Michael Adkinson or both the sum of $75,000.00

in the event that it, he or they file an appeal bond for costs

herein or otherwise perfect and appeal from this Judgment.

It is further

42a IN THE MATTER OF MEYERLAND COMPANY

ORDERED, ADJUDGED and DECREED that

Defendant/Counterplainuff Continental Savings Association

have judgment and recover from Meyerland Company or

William Michael Adkinson or both the sum of $15,000.00

in the event that any party files an application for writ of

error to the Texas Supreme Court. It is further

ORDERED, ADJUDGED and DECREED that

Defendant/Counterplaintiff Continental Savings Association

have judgment and recover from Meyerland Company or

William Michael Adkinson or both the sum of $10,000.00

in the event the Texas Supreme Court grants an application

for writ of error in connection with this cause. It is further

ORDERED, ADJUDGED and DECREED that all

night, title and interest of Meyerland Company, of William

M. Adkinson and of both in and to and derivative of that

certain promissory note in the face amount of

$1,000,000.00 made by Harry B. Terry in February of

1986 to William M. Adkinson as payee be and they are

hereby awarded to Continental Savings Association. It is

further

ORDERED, ADJUDGED and DECREED that

Continental Savings Association have and recover all cash

deposits in lieu of bond previously made with the District

Clerk of Harris County in connection with the granting of

any temporary restraining order or temporary injunction in

connection with this cause, including but not limited to

those deposits made on or about January 18, 1987, and on

or about April 7, 1987. It is further

ORDERED, ADJUDGED and DECREED that all

costs of Court incurred herein be and they are hereby taxed

against Plaintiffs Meyerland Company and William M.

Adkinson, jointly and severally. It is further

ORDERED, ADJUDGED and DECREED that each

and every order granting temporary equitable relief,

whether styled as a temporary restraining order, a

IN THE MATTER OF MEYERLAND CO. 43a

temporary injunction or otherwise, be an they are hereby

DISSOLVED.

All relief not expressly granted herein is hereby

DENIED.

SIGNED this 26th day of May, 1987.

The Honorable David West

Judge Presiding

dita IN THE MATTER OF MEYERLAND COMPANY

(APPENDIX C)

Order of Remand

Meyerland Company and William M. Adkinson,

Appellants,

v.

Continental Savings Association,

Appellee.

United States District Court

for the Southern District of Texas

Houston Division

Civil Action No. H-88-3783

April 23, 1989

ORDER OF REMAND

It appearing that Appellants’ Amended Motion for

Remand is well taken, it is, accordingly,

ORDERED, ADJUDGED AND DECREED that the

Amended Motion to Remand is granted, and that Civil

Action No. H-88-3783, Meyerland Company, et al vs.

Continental Savings Association be, and hereby is, ordered

remanded to the Court of Appeals for the First Supreme

Judicial District of the State of Texas, sitting in Houston,

4

IN THE MATTER OF MEYERLAND CO. 45a

Texas.

SIGNED the 21st day of April, 1989.

/s/

Hon. Kenneth Hoyt

Judge Presiding

46a IN THE MATTER OF MEYERLAND COMPANY

(APPENDIX D)

Order Remanding Case

Meyerland Company and William M. Adkinson,

Appellants,

7,

Continental Savings Association,

Appellee,

Federal Deposit Insurance Corporation

as Manager of the FSLIC Resolution Fund

as Receiver for Continental Savings Association,

Intervenor/Receiver.

In the United States District Court

for the Southern District of Texas

Houston Division

Civil Action No. H-89-3015

September 29, 1989

ORDER REMANDING CASE

ORDERED that this cause of action is remanded to the

Court of Appeals for the First Supreme Judicial District of

the State of Texas, at Houston, Texas.

This case was previously removed to this Court and

was remanded on April 21, 1989. No good purpose is

served by this second removal and the Court concludes that

the removal is violative of the purpose and spirit of 28

IN THE MATTER OF MEYERLAND CO. 47a

U.S.C. 1447(c) and Rule 11 of the Federal Rules of Civil

Procedure.

Appellants are awarded $2,500 as their costs, to be

paid by Federal Deposit Insurance Corporation and its

counsel Lee Larkin.

SIGNED this 27th day of September, 1989.

—/s/

Kenneth M. Hoyt

United States District Judge

)

.

= ——E

48a IN THE MATTER OF MEYERLAND COMPANY

(APPENDIX E)

Order for Stay Pending Reconsideration

Meyerland Company and William M. Adkinson,

Appellants,

Vv.

Continental Savings Association,

Appellee

Federal Deposit Insurance Corporation

as Manager of the FSLIC Resolution Fund

as Receiver for Continental Savings Association,

Intervenor/Receiver.

In the United States District Court

for the Southern District of Texas

Houston Division

Civil Action No. H-89-3015

October 12, 1989

ORDER FOR STAY PENDING RECONSIDERATION

Came on for consideration the Motion of the Federal

Deposit Insurance Corporation as Manager of the FSLIC

Resolution Fund as Receiver for Continental Savings

Association for Reconsideration of Remand Order and

Sanctions and to Stay Order of Remand and Sanctions

Pending Reconsideration and the Court, having considered

the motion, brief, and argument of counsel, is of the

IN THE MATTER OF MEYERLAND CO. 49a

opinion that it is without jurisdiction because the case was

remanded on October 4, 1989.

It is therefore ORDERED that the Order for Stay

Pending Reconsideration is DENIED.

SIGNED this 11th day of October, 1989.

/s/

Kenneth M. Hoyt

United States District

Judge

50a IN THE MATTER OF MEYERLAND COMPANY

(APPENDIX F)

Order Denying Appeal

Meyerland Company and William M. Adkinson,

Appellants,

Vv.

Continental Savings Association,

Appellee

Federal Deposit Insurance Corporation

as Manager of the FSLIC Resolution Fund

as Receiver for Continental Savings Association,

Intervenor/Receiver.

In the United States District Court

for the Southern District of Texas

Houston Division

Civil Action No. H-89-3015

November 6, 1989

ORDER

The emergency motion for stay pending appeal has been

filed by the FDIC as manager of the FSLIC Resolution

Fund for the failed Continental Savings Association.

Previously, this case was removed from the First Court of

Appeals of Texas. It was remanded. Again, this case has

been removed because of the enactment of the Financial

Institutions Reform, Recovery and Enforcement Act of

IN THE MATTER OF MEYERLAND CO. Sla

1989,

It is the view of this Court that a final judgment has

been entered against Continental Savings Association and

that this Court has no authority to review the factual or

legal circumstances attendant to that judgment. In this

regard, there are no justiciable issues to be tried. Comity

dictates that this Court take a "hands-off" approach.

Because.there are no issues remaining between the

parties, an appeal would be frivolous.

The FDIC’s motion is DENIED.

SIGNED this 30th day of October, 1989.

/s/

Kenneth M. Hoyt

United States District

Judge

52a IN THE MATTER OF MEYERLAND COMPANY

(APPENDIX G)

Panel Opinion

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,

Vv.

Meyerland Co., and William Adkinson,

Appellees.

United States Court of Appeals, Fifth Circuit

No. 89-6118

September 7, 1990

Rehearing and Rehearing En Banc

Deniexi Oct. 5, 1990

Appeal from the United States District Court for the

Southern District of Texas.

Before GARZA, HIGGINBOTHAM and DUHE’,

Circuit Judges.

DUHE’, Circuit Judge:

Proceedings Below and Appellate Jurisdiction

IN THE MATTER OF MEYERLAND CO. 53a

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 was enacted. The Federal

Deposit insurance Corporation (FDIC) succeeded the FSLIC

as the receiver of Continental and the FDIC then removed

this case on September 7, 1989 under § 209(4) of the

FIRREA (12 U.S.C. § 1819(b)(2)(B)). 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

' Although the FIRREA wes 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 (Sth

Cir. 1989) (Jones, J.) ("When Congress adopts statutory changes while

suit is pending the effect of which is not to eliminate a substantive nght

but rather to change the tribunal which will hear the case, those

changes—barring specifically expressed intent to the contrary--which

have immediate effect.") (citations omitted); and Jn re Resolution Trust

Co., 888 F.2d 57, 58 (8th Cir. 1989).

S4a IN THE MATTER OF MEYERLAND COMPANY

FDIC to remove a State court appellate proceeding; and (2)

Whether the district court erred in awarding sanctions.

(1) Whether Congress meant what it said.

12 U.S.C. § 1819(b)(2) states:

(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...remove any such action, suit or proceeding from a

State court to the appropriate United States district court.

(emphasis supplied).

The exception in subparagraph (D) does not apply to the

instant case and the sole issue to be decided, therefore, is

whether Congress meant to authorize the FDIC to remove a

state court appellate proceeding. To decide this issue, we

must first determine (A) whether Article Three authorizes

jurisdiction over this type of removal and, (B) if so,

whether Congress meant to authorize appellate removal

when it enacted § 1819(b)(2).?

*We do not decide whether this type of removal would be proper

under 28 U.S.C. §1441. First, it is clear that 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 unclear

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 (Sth 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. Jd. at 677-80. See also FDIC v.

IN THE MATTER OF MEYERLAND CO. SSa

(A) Article Three

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. y. 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, 12 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 and we

must decide whether it has done so by enacting the FDIC

removal statute.*

(B) The FDIC Removal Statute

The FDIC argues that 12 U.S.C. § 1819(b)(2) means

exactly what it says and since it does not exclude appellate

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

that Swmner 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 the 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.

> Congress enacted at least one statue 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.")

56a IN THE MATTER OF MEYERLAND COMPANY

removal, then it authorizes appellate removal. We would

agree with the FDIC that the plain meaning of the statute

controls its interpretation. See Mills v. Director, 877 F.2d

356, 362 (Sth Cir. 1989) (en banc) (Duhe’, J., dissenting).

Jurisdictional statutes, however, must also be interpreted

with and eye towards history. Justice Frankfurter in

Romero v. International Terminal Operating Co., 358 U.S.

354, 360-379, 79 S.Ct. 468, 473-484, 3 L.Ed.2d 368

(1959) explained:

abstractly 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.

History tells us clearly what Congress meant when it

enacted 12 U.S.C. § 1819(b)(2). In Osborn v. Bank of the

United States, 22 U.S. (9 Wheat) 738, 822, 6 L.Ed. 204

IN THE MATTER OF MEYERLAND CO. S7a

(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 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 though 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.‘

This statute, the predecessor to 28 U.S.C. § 1441, was

given an expansive interpretation in the Pacific Railroad

Removal Cases, 155 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.

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

58a IN THE MATTER OF MEYERLAND COMPANY

§ 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

(Sth Cir.1988). See also Collins, The Unhappy History of

Federal Question Removal, 71 Iowa L.Rev. 717 (1986). 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, 97, 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, of

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, 19-80 (Sth Cir.1990); and FDIC v. George-Howard,

153 F.2d 591 (8th Cir.), cert. denied, 329 U.S. 719, 67

S.Ct. 53, 91 L.Ed. 623 (1946). Thus, § 1819 authorizes

the exercise of jurisdiction over a dispute which involves

only issues of state law and to which the FDIC is a party.

History does not tell us, however, whether 12

U.S.C. § 1819 supports the exercise of removal jurisdiction

over an appellate proceeding. The appellants rely on

Barrow v. Hunton, 99 U.S. 80, 25 L.Ed. 407 (1879) to

argue that the removal of a post-judgment proceeding is

improper. In Barrow, Hunton won a state court judgment.

IN THE MATTER OF MEYERLAND CO. 59a

The judgment debtor moved to have the judgment nullified

and Hunton removed. The Supreme Court reasoned that if

the removed proceeding was an appeal or similar to an

appeal of a state court judgment, then removal would be

improper because "(o)therwise, the (lower federal courts)

would become invested with power to control the

proceedings in the state courts, or would have appellate

jurisdiction over them... Such a result would be totally

inadmissible. Jd. 99 U.S. at 83.

The appellants’ reliance on Barrow, however, is

misplaced. First, the limits which Barrow placed on

removal jurisdiction are statutory.’ Thus, even if we were

to concede that Barrow is still good law for the purposes of

28 U.S.C. § 1441,° it is not conclusive for our purposes.

Congress clearly intended that the FDIC removal statute be

given a different interpretation than the general removal

statute. Second, Barrow relied on an interpretation of

removal which may well be no longer valid. Barrow rests

on the notion that removal is like an appeal because the

proceeding did not commence in federal court. The modern

view of removal, however, is that it is more closely akin to

original than to appellate jurisdiction because once the case

“Although Congress generally forbids the lower federal courts from

entertaining appeals from state courts—see, e.g., District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 476, 482, 103 S.Ct. 1303,

1311, 1314, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), there is no

constitutional prohibition against it doing so. See The Federalist No.

82, at 494-95. (A.Hamilton) (Rossiter ed. 1961) ("I perceive...no

impediment to the establishment of an appeal from the State courts to

the subordinate national tribunals...")

‘See Beighley v. FDIC, 868 F.2d 776, 781 (Sth Cir. 1989)

(suggesting that Barrow’s reach has been curtailed by modern case

law).

60a IN THE MATTER OF MEYERLAND COMPANY

is removed, it is treated as if it had commenced in federal

court. See Freeman v. Bee Machine Co., 319 U.S. 448,

452, 63 S.Ct. 1146, 87 L.Ed. 1509, rehearing denied, 320

U.S. 809, 64 S.Ct. 27, 88 L.Ed. 489 (1943), and Svell v.

Southern Ry., 93 F.2d 377, 379 (Sth Cir.1937). See

generally J. Dillon, The Removal of Causes from State

Courts to Federal Courts with Forms 4 (Sth ed. 1889).

Although Barrow does not stand in the way of

exercising jurisdiction over the instant dispute, the bare

language of 12 U.S.C. § 1819 does not clearly support the

exercise of jurisdiction either. That the FDIC has the

authority to remove suits which “arise under” the laws of

the United States to the “appropriate United States district

court" does not establish the right of the FDIC to remove

appellate proceedings. The FDIC contends that this right is

established by 12 U.S.C. § 1821 (d)(13)(B) which states "In

the event of any appealable judgment, the Corporation as

conservator or receiver shall have all the nghts and

remedies available to the insured depository ... had the

Corporation in its corporate capacity, including removal to

Federal court and all appellate rights." This language

makes it clear that the FDIC may not remove a suit after

judgment. It does not, however, clearly establish that the

FDIC may remove a case which is on appeal. One reading

of 12 U.S.C. § 1821 (d)(13)(B) when it is read in pari

materia with the FDIC removal statute, 12 U.S.C. §

1819(b)(2)(B), suggests that a suit may not be removed once

it is On appeal because a case may be removed only to a

federal district court. The majority of the cases involving

post-judgment removal were removed from a state district

court, not the state court of appeals, to the federal district

court and then an appeal was filed or an attack was made on

the judgment via Fed.R.Civ.P. 60. See, e.g., Beighley v.

FDIC, 868 F.2d 776, 7779 (Sth Cir.1989); Northshore

IN THE MATTER OF MEYERLAND CO. 6la

Development, Inc. v. Lee, 835 F.2d 580, 582 (Sth

Cir. 1988); and In re Savers Federal Savings and Loan

Ass'n, 872 F.2d 963, 964 (11th Cir. 1989).’

In Jn 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

granted mandamus and vacated the remand on the basis of §

1819(b)(2)(B).

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 965-55. The court concluded that "(w)e can

discern no reason to confine the interpretation of ‘action’ to

actions that have not rendered judgment ... 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 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 (Sth Cir. 1985) (per curiam);

” See also Azzopardi v. Ocean Drilling & Exploration Co., 742

F.2d 890 (Sth Cir.1984) and Butner v. Neustadter, 324 F.2d 783, 785

(9th Cir. 1963).

62a IN THE MATTER OF MEYERLAND COMPANY

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 (Sth Cir. 1989), a case

which was on appeal, we allowed removal and the district

court set aside a default judgment. We conclude that the

FDIC is entitled to remove the instant dispute as well.

C. Procedure

Our decisions here and in Yancey Camp, however,

entail certain procedural difficulties which we must now

face. In Yancey Camp, the case was removed from the

State court of appeals and the federal district court then

entertained an attack on the removed judgment under

Fed.R.Civ.P. 60. Once a case is removed, however, the

federal court takes the case as it finds it on removal.

Granny Goose Foods, inc. v. Brotherhood of Teamsters

Auto Truck Drivers, 415 U.S. 423, 94 S.Ct. 1113, 39

L..Ed.2d 435 (1974); In re Savers Federal Savings and Loan

Ass'n, 872 F.2d 963, 966 (11th Cir.1989); and Butner v.

Neustadter, 324 F.2d 783, 785 (9th Cir.1963). Federal

courts must "treat every thing that occurred in the state

court as if it had taken place” in federal court. Jn re

Savers, 872 F.2d at 966. Thus, since the instant case was

on appeal in the state court when it was removed, it will be

on appeal once the merits of this dispute are reached. We

are certain that Congress did not intend to deprive the

parties to the dispute of the right to appeal and to relegate

them to relief under Fed.R.Civ.P. 60 when it authorized

appellate removal by enacting the FDIC removal statute.

Thus, the role of the district court must be simply to treat

the removed proceeding as if it had originated in the district

court and adopt the state court judgment as its own. See

IN THE MATTER OF MEYERLAND CO. 63a

Yancey Camp.

Since the instant appeal only deals with the district

court’s decision to remand, we do not reach the merits of

the case. One further procedural point, however, must be

addressed. When this appeal was first filed, a motion panel

of this court decided not to enjoin the ongoing state appeal.

Its decision is not the law of the case. See Northshore

Development, Inc. v. Lee, 835 F.2d 580, 583 (Sth

Cir. 1988), and Browning v. Navarro, 887 F.2d 553, 557

(Sth Cir.1989), reh’g denied, 894 F.2d 99 (Sth Cir. 1990).

An injunction is proper because once a case is removed, the

state Court no longer has jurisdiction over the dispute. The

anti-injunction act, moreover, does not bar our injunction.

Federal courts are generally barred from enjoining state

court proceedings so as to preserve our system of

concurrent jurisdiction. See Atiantic Coast Line R. Co. vy.

Brotherhood of Locomotive Engineers, 398 U.S.281, 286,

90 S.Ct. 1739, 1743, 27 L.Ed.2d 234 (1970). However.

once a case is removed, the staie court no longer enjoys

concurrent jurisdiction over the dispute. The anti-injunction

act, therefore, does not bar an injunction of a state court

proceeding which purports to exercise jurisdiction over the

removed case. See French v. Hay, 89 U.S. (22 Wall) 250,

253, 22 L.Ed. 857 (1875).°

* 28 U.S.C. § 1446(d) recognizes this fact by stating that after

removal, the “State court shall proceed no further unless and until the

case is remanded.” 28 U.S.C. § 1446(d), therefore, provides support

for our decision to enjoin the state court appellate proceeding. We do

not rely on this statue, however, because it is not clear whether § 1446

may be utilized when removal is premised on 12 U.S.C. § 1819(b)(2).

The predecessor to the current statute stated that the FDIC could

“remove any such action... by following any procedure for removal

now or hereafter in effect." The Financial Institutions Supervisory Act

of 1966, Pub.L. No. 89-695, § 205, 80 Stat. 1028, 1055. In Jn re

<4

64a IN THE MATTER OF MEYERLAND COMPANY

(2) 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 and

REMANDED. Further state court proceedings are hereby

ENJOINED.

PATRICK E. HIGGINBOTHAM, Circuit Judge,

concurring in part and dissenting in part:

I concur in the reversal of the sanctions order, but I

dissent from the remainder of my colleagues’ thoughtful

opinion. The case is difficult and perplexing, but I am

persuaded of a different course. 12 U.S.C. § 1819

(b)(2)(B) does not permit the FDIC to remove ail cases

pending on appeal in the state courts. The statute limits the

right of removal to cases over which the district court may

Savers Federal Savings & Loan Assoc., 872 F.2d 963, 965

(__Cir.1989), for example, the court held that the procedural strictures

of § 1446 governed removal under 12 U.S.C. § 1730(k)(1) (repealed

by FIRREA, Pub.L. 101-73, Title IV, § 407, 103 Stat. 363 (1989))

which employed language similar to the now repealed FDIC removal

statute. The current FDIC removal statute says nothing about the

procedure which is to be followed on removal and it is possible,

therefore, that § 1446 no longer governs FDIC removal. See

Resolution Trust Corp. for Sandia Federal Sav. Assn. v. Key, 733

V.Supp. 1086, 1089 (N.D.Tex.1990) (holding that 28 U.S.C. § 1446

does not govern removal by the Resolution Trust Corporation). Since

we do not rely directly on § 1446, we need not to decide this issue.

IN THE MATTER OF MEYERLAND CO. 65a

exercise some original jurisdiction. It does not forbid all

removals from state appellate courts. It permits them when

Rule 60 relief is available and sought. But that is not this

case.

I find the majority’s reading of the statute to be

implausible, not required by precedent, and to rest upon

judicial creation of new procedural tracks for removal

without Congressional warrant. The majority leaves us with

unacceptable alternatives: we must either permit the federal

district courts to exercise appellate jurisdiction over state

trial judgments, or require them to enter judgments that do

not reflect their own judgment at all. The majority chooses

the latter path, imposing a clerk’s role on the Article III

courts; but neither alternative is consistent with the statute

or the res. of the federal jurisdictional legislation.

I.

12 U.S.C. § 1819(b)(2)(A) provides that, subject to

exceptions not applicable here, all civil suits to which the

FDIC is a party are deemed to arise under the laws of the

United States. 12 U.S.C. § 1819(b)(2)(B) provides that the

FDIC may remove any such action suit, or proceeding from

"a State court to the appropriate United States district

court." These subsections expand the original and removal

jurisdiction of the district courts, as they permit the FDIC

to bring actions which, because of their subject matter,

would ordinarily have been matters for the state courts.

Carrollton-Farmers Branch Independent School District v.

Johnson & Cravens, 13911, Inc., 889 F.2d 571 (Sth

Cir.1989); Triland Holdings & Co. v. Sunbelt Service

Corp., 884 F.2d 205 (Sth Cir. 1989).

To permit the FDIC to remove this case, however,

my brothers read the statute to do far more than add a new

Class of cases to the district courts’ federal question

66a IN THE MATTER OF MEYERLAND COMPANY

jurisdiction. They read it to permit the FDIC to remove

cases to the district courts regardless of their procedural

posture (so long as they are still pending somewhere in the

State system). Ultimately, their reading is necessarily

premised on an assumption that the general federal question

removal statutes, 28 U.S.C. §§ 1441-1451, permit this as

well. I do not think these statutes can bear that freight.

A.

The majority opinion suggests that § 1819(b)(2)

creates in the FDIC a right of removal independent of the

general removal statutes. As I noted, this is true to a point-

-the FDIC may remove any case to which it is a party, and

is not constrained by the subject matter limits that bind

other parties. But to conclude, without reference to the

general removal statutes that § 1819(b)(?) permits removal

of any pending case regardless of procedural posture, we

must find in FIRREA an independent procedural track for

removed cases. I can find none, and must assume that

Congress intended to rely on the procedural track

established in the general removal statutes. For example,

§ 1819(b)(2)(B) provides that removal must be to the

“appropriate” district court. As "appropriate" is not defined

for these purposes in FIRREA or anywhere else in the

United States Code, it necessarily refers to the venue

provision in 28 U.S.C. § 1441(a). That is, removal must

be to the district court for the district and division in which

the action is pending. Further, FIRREA simply makes no

provision for much of the mechanics of removal. If the

general removal statutes are not the guide, how is the FDIC

to let the district court know it wishes to remove the case?

How is the other party to oppose the removal? What

happens to the proceedings in state court upon removal?

What if the district court determines removal is not proper?

IN THE MATTER OF MEYERLAND CO. 67a

It strains credulity to say that we are not to look to the

general removal statutes for the answers.

When Congress wished to depart from the ordinary

procedural track in FIRREA, it said so explicitly. That we

are deciding this case at all proves the point, for ordinarily

we do not hear appeals of remand orders--we are hearing

this one because 12 U.S.C. § 1819(b)(2)(C) compels us to

do so. But these express departures are few and far

between, and do not in any sense constitute an entire

procedural track. My brothers apparently do not dispute

this, for their holding ultimately relies substantially upon

cases involving removal under the general statutes.

B.

The argument that parties may remove all cases on

appeal in the state court system relies upon the language of

§ 1819(b)(2), the general removal statutes and decisions

which purportedly have read that language to permit such

removal. Specifically, the argument urges that § 1441(a)’s

language permitting the removal of "any such action, suit,

or proceeding from a state court" means exactly what it

says. Section 1819(b)(2)(B) likewise provides for removal

of any action “from a State Court." The argument

continues that the cases clearly establish that any action may

be removed until the

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