USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1230
FDIC, FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER OF VANGUARD SAVINGS BANK,
Plaintiff, Appellant,
v.
PAUL KEATING, INDIVIDUALLY; PAUL F. KEATING
AS TRUSTEE OF THE PJ THREE REALTY TRUST AND OF THE
FOUR "K" TRUST; LUCILLE SAMSON AS TRUSTEE OF THE
KELLOGG REALTY TRUST; LUCILLE SAMSON AND
PAULA J. KEATING AS TRUSTEES OF THE
111 ALLEN AVENUE REALTY TRUST; AND
VICTORIA MUTUAL LIMITED PARTNERSHIP,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Rosenn,* Senior Circuit Judge,
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and Campbell, Senior Circuit Judge.
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Daniel H. Kurtenbach, with whom Ann S. Duross, Assistant General
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Counsel and Richard J. Osterman, Jr., Senior Counsel, were on brief
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for appellant.
Philip D. Moran for appellees.
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December 29, 1993
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*Of the Third Circuit, sitting by designation.
Per Curiam. In this appeal, plaintiff-appellant
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Federal Deposit Insurance Corporation (FDIC) asserts that the
district court erred when it determined that 12 U.S.C.
1819(b)(2)(B) (1988 & Supp. IV 1992) does not allow removal
of a state court proceeding to federal district court during
the pendency of a state appeal and after the window for post-
judgment relief has closed. See generally FDIC v. Keating,
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812 F. Supp. 8 (D. Mass. 1993). We reverse and remand.
I.
I.
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BACKGROUND
BACKGROUND
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On February 15, 1990, Vanguard Savings Bank
(Vanguard) filed suit in Massachusetts state court against
Paul F. Keating and several other individuals and entities to
collect on a promissory note signed by Keating. After
Vanguard foreclosed on the property securing the note, the
case was tried and, on November 18, 1991, the state court
entered a deficiency judgment. The parties did not file any
motions for post-judgment relief. On December 11, 1991,
defendants nevertheless filed a notice of appeal.
On March 27, 1992, the Massachusetts bank
commissioner declared Vanguard insolvent. On May 13, 1992,
the FDIC, having been confirmed as liquidating agent, was
substituted into the state court case as receiver of
Vanguard. On August 10, 1992, the FDIC timely removed the
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case to the United States District Court for the District of
Massachusetts. See 12 U.S.C. 1819(b)(2)(B).
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Because no motions for post-judgment relief were
pending (nor were any filed after removal), the district
court found itself in the somewhat anomalous position of
receiving a case that was solely appellate in nature. After
a hearing at which the district court questioned its
jurisdiction over the case, the court remanded the proceeding
to state court. Relying on the dissent in In re Meyerland
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Co., 960 F.2d 512, 522-26 (5th Cir. 1992) (en banc), cert.
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denied, 113 S. Ct. 967 (1993), the district court held that
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12 U.S.C. 1819(b)(2)(B) does not allow removal when a state
appeal is pending. The court further held that, in any
event, it lacked jurisdiction because (1) the time for filing
post-judgment motions under both state and federal rules of
procedure had elapsed;1 (2) the court's original
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1. The district court's finding on the unavailability of
post-judgment relief is not challenged on appeal and we
therefore decline to review this aspect of its decision. We
note, however, that at least two circuits have suggested
that, even if post-judgment relief is no longer possible
under state procedural rules, the time period for such relief
under the federal rules begins on the date of removal. See
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Jackson v. American Sav. Mortgage Corp., 924 F.2d 195, 199 &
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n.9 (11th Cir. 1991) ("[E]ven if state procedural rules
contain a Rule 59-type motion . . . and removal occurs during
the running of the time for such a motion or after the time
for such a motion has run, a party would still have ten days
after removal to file a Rule 59 motion in federal district
court."); Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 68
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(3d Cir. 1993) (noting similarity between Resolution Trust
and FDIC removal statutes and establishing circuit rule that
"[i]n all cases removed to the district court after judgment
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jurisdiction does not include mere processing of a state
judgment for federal appeal; and (3) a district court cannot
exercise appellate jurisdiction over a state trial court.
Pursuant to 12 U.S.C. 1819(b)(2)(C) (Supp. IV 1992), the
FDIC brought this appeal. See Demars v. First Serv. Bank for
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Sav., 907 F.2d 1237, 1241 (1st Cir. 1990) (noting that
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section 1819(b)(2)(C) creates an exception to the general
rule against appellate review of remand orders).
II.
II.
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DISCUSSION
DISCUSSION
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Our review of a district court's interpretation of
a statute, a pure question of law, is plenary; however
reasonable the district court's decision, we are free to
exercise our independent judgment. See United States v.
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Barker Steel Co., Inc., 985 F.2d 1123, 1125-26 (1st Cir.
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1993). In so doing, we must first decide whether 12 U.S.C.
1819(b)(2)(B) permits removal of cases already tried and
awaiting appeal in state court. If so, we must then
determine the proper role of the district court when post-
judgment relief is no longer available.
1. Removal
1. Removal
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has been entered by a state court, the parties may, within
thirty days of the date the case is docketed in the district
court, file motions to alter, modify, or open the
judgment.").
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Both the plain language of the statute and circuit
precedent support removal in this case. Congress authorized
the FDIC to "remove any action, suit or proceeding from a
State court to the appropriate United States district court
before the end of the 90-day period beginning on the date the
action, suit, or proceeding is filed against the [FDIC] or
the [FDIC] is substituted as a party." 12 U.S.C.
1819(b)(2)(B). While post-judgment removal may not be the
statutory norm, Congress did not limit removal in this
instance to any particular phase of a state court proceeding.
Cf. 12 U.S.C. 632 (1988 & Supp. IV 1992) (limiting removal
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by Federal Reserve member bank to "anytime before the
trial"). Nor may the judicial branch impose such a limiting
interpretation where, as here, the statutory language is
unambiguous on its face and the result is not "demonstrably
at odds with the intentions of its drafters." Griffin v.
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Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). See
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also Estate of Kaw v. Commissioner, Me. Dep't of Human
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Servs., 951 F.2d 444, 445 (1st Cir. 1991) ("`When we find the
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terms of [a] statute unambiguous, judicial inquiry is
complete except in rare and exceptional circumstances.'")
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981) and
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Paris v. Department of Hous. & Urban Dev., 843 F.2d 561, 569
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(1st Cir. 1988)).
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In any event, we believe that the result in this
case is controlled by our recent decision in Putnam v.
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DeRosa, 963 F.2d 480 (1st Cir. 1992). In Putnam, after the
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completion of a state trial and the filing of a notice of
appeal,2 the National Credit Union Administration (NCUA)
became conservator for one of the defendants and removed the
case to federal court. See id. at 483. In noting that "[a]
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special statute [12 U.S.C. 1789(a)(2) (1988)] gives [NCUA]
the right to bring this appeal in federal court," we also had
occasion to observe that section 1789(a)(2) is similar to
section 1819(b)(2). Id. We continue to be impressed by the
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mutual resemblance of the two removal statutes, and conclude
that section 1819(b)(2) gives FDIC the right to remove this
case to federal court.
Perhaps, as the district court opined, removal of a
state appellate proceeding is offensive to state courts and
unnecessary for the achievement of legislative goals.3
Indeed, we are not as confident as the Eleventh Circuit that
"Congress itself has weighed interests of federalism and
comity" in granting appellate removal power to the FDIC. In
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2. Our research confirms that a state notice of appeal was
filed in Putnam despite the omission of this fact from our
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published opinion in that case.
3. The type of reflexive removal apparent in this case
strikes us as particularly wasteful of scant economic and
judicial resources. After all, the FDIC's predecessor was
fully victorious at trial and received all the relief sought.
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re Savers Fed. Sav. & Loan Ass'n, 872 F.2d 963, 966 (11th
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Cir. 1989) (per curiam) (analyzing predecessor to current
FDIC removal statute). Nevertheless, Congress has clearly
stated in section 1819(b)(2) that "any action, suit or
proceeding" is removable. Accordingly, we join with every
other circuit that has addressed the statutory language at
issue in holding that the pendency of a state appeal does not
bar removal under 12 U.S.C. 1819(b)(2). Accord In re
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Meyerland Co., 960 F.2d at 517; In re Savers Fed. Sav. & Loan
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Ass'n, 872 F.2d at 966; cf. Nernberg, 3 F.3d at 67 (holding
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that 12 U.S.C. 1441a(l)(3)(A) (Supp. IV 1992), the removal
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statute for Resolution Trust Corporation, identical in
relevant part to the FDIC removal provision, allows removal
while state appeal is pending); Lester v. Resolution Trust
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Corp., 994 F.2d 1247, 1251-52 (7th Cir. 1993) (same); In re
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5300 Memorial Investors, Ltd., 973 F.2d 1160, 1162 (5th Cir.
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1992) (same); Ward v. Resolution Trust Corp., 972 F.2d 196,
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198 (8th Cir. 1992) (similar), cert. denied, 113 S. Ct. 1412
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(1993).
2. The Role of the District Court
2. The Role of the District Court
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Where, as in this appeal, post-judgment relief is
no longer available,4 the district court shall adopt the
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4. Without deciding the question, we assume that, following
removal, a district court could entertain timely motions for
post-judgment relief despite the fact that the trial took
place elsewhere. Cf. Nernberg, 3 F.3d at 68 (allowing
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district court to accept motions to alter, modify or open the
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decision of the state court as its own, prepare the record as
required for appeal, and forward the case to the federal
appeals court for review. Accord In re Meyerland, 960 F.2d
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at 520.5
Echoing the district court's memorandum, defendants
suggest that the minimal nature of this clerical role for the
district court indicates the absence of a "case or
controversy," a necessary predicate to the exercise of
federal jurisdiction under Article III of the Constitution.
See, e.g., Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st
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Cir. 1993). We find this argument unpersuasive. Despite the
lack of post-judgment motions for the district court to
decide, this case arrives at the federal doorstep with
"`questions presented in an adversary context and in a form
historically viewed as capable of resolution through the
judicial process.'" Santa Maria v. Owens-Illinois, Inc., 808
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F.2d 848, 851 n.5 (1st Cir. 1986) (quoting Flast v. Cohen,
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392 U.S. 83, 95 (1968)). A contested appeal of a state court
decision is clearly a "case or controversy" amenable to
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state court judgment).
5. In theory, a party need not file a second notice of
appeal in federal court if the original notice of appeal was
adequate in the state court system. In re Meyerland, 960
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F.2d at 520 (citing Granny Goose Foods, Inc. v. Brotherhood
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of Teamsters, 415 U.S. 423, 435-36 (1974)). In practice, a
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party should do so as filing an additional notice of appeal
would facilitate the administrative processing of the case in
the federal system.
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judicial intervention. The jurisdictional boundaries of
Article III -- which does not itself create distinctions
among the "inferior Courts" to be established by Congress --
do not prevent a bona fide dispute from reaching a federal
appeals court simply because the district court's role is
limited by the awkward posture of a case removed during the
pendency of a state appeal.
III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, we reverse the judgment
of the district court, vacate the order remanding the case to
the state court, and remand the case to the district court
for proceedings consistent with this opinion.
So ordered.
So ordered
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