DeCell & Associates v. Federal Deposit Insurance

United States Court of Appeals,

Fifth Circuit.

No. 94-20165.

Summary Calendar.

DeCELL & ASSOCIATES, Plaintiff-Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Guaranty
Bank, et al., Defendants,

Federal Deposit Insurance Corporation, as Receiver for Guaranty
Bank, Defendant-Appellee.

Nov. 1, 1994.

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

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Appellant DeCell & Associates ("DeCell") appeals from the

district court's dismissal of its claims against the Federal

Deposit Insurance Corporation ("FDIC"), in both its receivership

and corporate capacities, for lack of subject matter jurisdiction.

We affirm the judgment of the district court.

I. BACKGROUND

DeCell is a company engaged in the business of buying and

selling oilfield drill pipe and related products. In April 1986,

JRL International and Associates, Inc. ("JRL") ordered drill collar

bits from DeCell, instructing DeCell to ship the bits to a Mexican

company, Perforaciones Marinas Del Golfo, S.A. ("Permargo").

Before it would sell to JRL, DeCell required a letter of credit;

consequently, Guaranty Bank ("Guaranty") issued a $250,000

1
irrevocable letter of credit on the account of Permargo and in

favor of JRL. JRL allegedly transferred the letter of credit to

assignee DeCell, and upon receipt of the letter of credit, DeCell

shipped the drill collar bits to Permargo.

On June 9, 1986, DeCell presented the letter of credit to

Guaranty for payment, but Guaranty refused to honor it. On August

13, 1986, DeCell filed suit in state court against Guaranty and JRL

for the alleged wrongful dishonor of the letter of credit. While

the case was pending in state court, Guaranty failed, and the

Banking Commissioner of Texas appointed the FDIC as Receiver

("FDIC-Receiver") on June 3, 1988. FDIC-Receiver intervened as

defendant in place of Guaranty, and removed the case to federal

district court pursuant to 12 U.S.C. § 1819(b)(2)(B).1

In its amended answer, FDIC-Receiver raised two affirmative

defenses that were uniquely applicable to the agency. First, FDIC-

Receiver asserted that the federal court lacked jurisdiction to

determine whether the letter of credit was an "insured deposit."2

1
The statute provides in relevant part:

Except as provided in subparagraph (D), the Corporation
may, without bond or security, remove any action, suit,
or proceeding from a State court to the appropriate
United States district court before the end of the 90-
day period beginning on the date the action, suit, or
proceeding is filed against the Corporation or the
Corporation is substituted as a party.

12 U.S.C. § 1819(b)(2)(B).
2
DeCell claimed that its letter of credit was an insured
deposit, and as a consequence, DeCell asserted that it could
recover $100,000 of deposit insurance rather than a simple pro
rata share of the receivership estate.

2
Second, FDIC-Receiver argued that DeCell had failed to sue the

correct party—the FDIC in its corporate capacity ("FDIC-

Corporate")—which alone is authorized under 12 U.S.C. § 1821(f)(1)3

to pay insured deposits upon the closing of an insured depository

institution. On February 7, 1992, DeCell and JRL filed a

stipulation for entry of judgment against JRL in favor of DeCell;

thus, only the remaining wrongful dishonor action against FDIC-

Receiver (substituting for Guaranty) proceeded to a bench trial

before a United States Magistrate.

Without issuing a judgment, the Magistrate sua sponte ordered

a new trial because she determined that FDIC-Corporate was an

indispensable party to DeCell's claim for deposit insurance. The

Magistrate also ruled that the district court had subject matter

jurisdiction to determine whether the letter of credit is an

insured deposit. FDIC-Receiver filed a motion for reconsideration,

urging that, by statute, no court has jurisdiction over the deposit

insurance claim until DeCell files the claim with FDIC-Corporate

and FDIC-Corporate makes a "final determination." It is undisputed

that DeCell never filed such a claim with FDIC-Corporate.4 The

3
The statute provides in relevant part:

In case of the liquidation of, or other closing or
winding up of the affairs of, any insured depository
institution, payment of the insured deposits in such
institution shall be made by the Corporation as soon as
possible.

12 U.S.C. § 1821(f)(1).
4
DeCell admits in the "Statement of facts" portion of its
brief that "DeCell did not file any proof of claim with FDIC at
any time."

3
Magistrate denied the motion for reconsideration and set the case

for a new trial.

FDIC-Receiver then filed a second supplemental motion for

reconsideration, reiterating its jurisdictional challenges. FDIC-

Corporate, having been added as a party by DeCell, moved to dismiss

on the same jurisdictional grounds, and withdrew its consent to

proceed before the Magistrate. The district court then ordered the

parties to file cross-motions for summary judgment on the issues in

the case.

In a January 4, 1994 order, the district court dismissed

Decell's claims against both FDIC-Receiver and FDIC-Corporate for

lack of jurisdiction. As the district court wrote:

In carefully reviewing the entire record, the Court recognized
that something went awry in the rulings in this dispute,
perhaps because in its early stages the applicable law was
new, untested, and, indeed, still developing. Nevertheless it
is now clear to the Court that under the applicable law, cited
by the FDIC in both its receivership and corporate capacities,
that [sic] DeCell is required to file a claim with the federal
agency and that this Court has no jurisdiction to consider the
dispute.

DeCell appeals from this ruling.

II. STANDARD OF REVIEW

Subject matter jurisdiction is a question of law that we

review on a de novo basis. See Carney v. Resolution Trust Corp.,

19 F.3d 950, 954 (5th Cir.1994) (per curiam); Ceres Gulf v.

Cooper, 957 F.2d 1199, 1204 (5th Cir.1992). The question of

federal court jurisdiction "may be raised by parties, or by the

court sua sponte, at any time." MCG, Inc. v. Great W. Energy

Corp., 896 F.2d 170, 173 (5th Cir.1990).

4
 III. ANALYSIS AND DISCUSSION

Many of DeCell's contentions can be resolved merely by

examining the deposit insurance system and our holdings in the

area. Because this case hinges on our interpretation of the

statutory provisions, a thorough description of the statutory

scheme is necessary. DeCell's arguments will then be discussed in

turn.

A. The Exhaustion Requirement

Federal statutes govern the process by which the FDIC

designates claims entitled to federal deposit insurance. See 12

U.S.C. § 1821(f). This "designation" responsibility is statutorily

given to FDIC-Corporate, as that entity is charged with insuring

the deposits of banking institutions and processing the insurance

claims of failed banks. See 12 U.S.C. § 1821(a), (f). The

relevant sections on the payment of insured deposits provide:

(f) Payment of insured deposits

. . . . .

(2) Proof of claims

The Corporation, in its discretion, may require
proof of claims to be filed and may approve or
reject such claims for insured deposits.

(3) Resolution of disputes

(A) Resolutions in accordance to corporation
regulations

In the case of any disputed claim relating to any
insured deposit or any determination of insurance
coverage with respect to any deposit, the
Corporation may resolve such disputed claim in
accordance with regulations prescribed by the
Corporation establishing procedures for resolving
such claims.

5
 (B) Adjudication of claims

If the Corporation has not prescribed regulations
establishing procedures for resolving disputed
claims, the Corporation may require the final
determination of a court of competent jurisdiction
before paying any such claim.

(4) Review of corporation's determination

Final determination made by the Corporation shall
be reviewable in accordance with chapter 7 of Title
5 by the United States Court of Appeals for the
District of Columbia or the court of appeals for
the Federal judicial circuit where the principal
place of business of the depository institution is
located.

12 U.S.C. § 1821(f).

Based on this statutory scheme, the FDIC contends that a

deposit insurance claim is not ripe for federal court review until

the claim has been presented to FDIC-Corporate, and until FDIC-

Corporate has made a "final determination." In contrast, DeCell

emphasizes the tentative "may" language of sub-sections (2) and

(3), asserting that "[t]here is nothing mandatory about the filing

of claims or the approval or rejection of the claim[s] process."

DeCell's interpretation, however, has previously been rejected

by this Court. In Aztec General Agency v. Federal Deposit

Insurance Corp., No. 93-1424, slip op. at 3 (5th Cir. Feb. 7, 1994)

(per curiam) (unpublished opinion), plaintiff Aztec filed suit

against a failed bank and FDIC-Corporate in state court for

wrongful dishonor of a letter of credit. FDIC-Receiver substituted

itself in place of the failed bank, and the lawsuit was removed to

federal court. See id. On appeal, FDIC-Corporate argued that the

district court lacked subject matter jurisdiction to hear disputes

6
concerning FDIC-Corporate's final determination of "insured

deposit" status. See id. at 4.

This Court agreed with the position of the FDIC, concluding

that the district court lacked jurisdiction over the insured

deposit dispute. See id. at 6. As we explained:

[W]e note that Aztec acknowledges that FDIC-Corporate has not
made a final determination in this case. In fact, although
Aztec wrote a letter to FDIC-Receiver seeking payment of the
letter of credit, Aztec never submitted a claim to FDIC-
Corporate for payment of an insured deposit. Because Aztec
never sought payment of an insured deposit from FDIC-
Corporate, it is not surprising that FDIC-Corporate never made
a final determination denying payment. Thus, without a final
determination from FDIC-Corporate denying payment of the
alleged insured deposit, this case is not, in any event, ripe
for judicial review.

Id. at 6-7 (footnote omitted) (emphasis added). Thus, just as we

have found an exhaustion requirement in the § 1821(d) procedures

for presenting creditors' claims to FDIC-Receiver, see Meliezer v.

Resolution Trust Co., 952 F.2d 879, 881-82 (5th Cir.1992) (stating

that creditors of a failed institution must first present their

claims to the Receiver for administrative consideration before

pursuing a judicial remedy), so too have we established an

exhaustion requirement in the § 1821(f) procedures for presenting

deposit insurance claims to FDIC-Corporate.

In the instant case, it is undisputed that DeCell has never

presented its deposit insurance claim to FDIC-Corporate. As a

consequence, there has been no opportunity for FDIC-Corporate to

make a "final determination" regarding whether DeCell's letter of

credit was an insured deposit. Thus, following from our decision

in Aztec, DeCell's claims against FDIC-Receiver and FDIC-Corporate

7
are not ripe for judicial review, and the district court correctly

dismissed the claims for lack of subject matter jurisdiction.

Even if FDIC-Corporate had made a "final determination," we

nevertheless would affirm the district court's dismissal for lack

of jurisdiction. Our cases have repeatedly held that under §

1821(f)(4), an appeal of FDIC-Corporate's "final determination"

concerning payment of insured deposits can only be made to the

appropriate circuit court of appeals. See Aztec General Agency v.

Federal Deposit Ins. Corp., No. 93-1424, slip op. at 7 (5th Cir.

Feb. 7, 1994) (per curiam) (unpublished opinion); Kershaw v.

Resolution Trust Corp., 987 F.2d 1206, 1208 (5th Cir.1993) (per

curiam); Nimon v. Resolution Trust Corp., 975 F.2d 240, 243-44

(5th Cir.1992) ("Congress used plain language in 12 U.S.C. §

1821(f)(4) which specifies that the courts of appeal will be the

fora of these [deposit insurance coverage] reviews."). Thus, even

if we assume that DeCell did present its claim to FDIC-Corporate

and that FDIC-Corporate had made a "final determination," the

district court still lacked jurisdiction under the plain language

of § 1821(f)(4) and the mandate of our prior opinions.

B. Waiver of the Exhaustion Requirement

DeCell begins its brief by suggesting, through a number of

arguments, that FDIC-Corporate waived its right to rely upon

DeCell's failure to file a deposit insurance claim. To support

this contention, DeCell argues that the FDIC, in both its corporate

and receivership capacities, has been involved in the case since

FDIC-Receiver's intervention. DeCell seems to assert that because

8
FDIC-Receiver intervened in the state court lawsuit without

expressly limiting its appearance to that of Receiver, the FDIC

waived its right to claim that FDIC-Corporate was not presented

with, and was unaware of, the deposit insurance claim.5 As Decell

itself summarized:

Because of FDIC's knowledge of the state court suit, and
because of its participation in the case for 22 months without
a Rule 12 motion, plea in abatement, answer alleging estoppel
for failure to participate in the claims process or other
indication that DeCell should seek administrative remedies, it
has waived any right to complain about DeCell's lack of filing
for determination of insured depositor status th[r]ough the
administrative process.

DeCell's waiver arguments are without merit. First, DeCell's

contention that the FDIC's intervention was a "general appearance"

because it did not expressly limit its appearance to that of

Receiver is misguided. It is well-settled that the FDIC operates

in two separate and legally distinct capacities, each with very

different responsibilities. See Aztec General Agency v. Federal

Deposit Ins. Corp., No. 93-1424, slip op. at 2 n. 1 (5th Cir. Feb.

7, 1994) (per curiam) (unpublished opinion) ("FDIC-Receiver and

FDIC-Corporate are distinct legal entities."); Texas Am.

Bancshares, Inc. v. Clarke, 954 F.2d 329, 335 (5th Cir.1992) ("The

separateness of these dual identities of the FDIC has been well

respected by federal courts."); Federal Deposit Ins. Corp. v.

Condit, 861 F.2d 853, 854, 858 (5th Cir.1988). FDIC-Receiver is

charged with the responsibility of winding up the affairs of failed

5
Similarly, DeCell seems to contend that the FDIC waived its
right to argue that it appeared in the limited capacity of
Receiver because the FDIC did not specifically raise a lack of
capacity defense when it intervened in the lawsuit.

9
institutions, including selling assets and paying creditors'

claims. See 12 U.S.C. § 1821(d); Aztec General Agency v. Federal

Deposit Ins. Corp., No. 93-1424, slip op. at 2 (5th Cir. Feb. 7,

1994) (per curiam) (unpublished opinion). FDIC-Corporate functions

as an insurer of bank deposits, and is charged with paying the

insured deposits of failed banks within a reasonable time. See 12

U.S.C. § 1821(a); Aztec General Agency v. Federal Deposit Ins.

Corp., No. 93-1424, slip op. at 2 (5th Cir. Feb. 7, 1994) (per

curiam) (unpublished opinion).

Only FDIC-Receiver intervened in DeCell's state court lawsuit

against Guaranty. As a wholly distinct entity, there was no need

for FDIC-Receiver to expressly designate itself as separate from

FDIC-Corporate; mere designation of the Receiver status in the

pleadings was enough. No lack of capacity allegations or special

appearance motions were needed. Only FDIC-Receiver intervened, and

because FDIC-Receiver has no authority to make deposit insurance

determinations, FDIC-Corporate did not waive its statutory right to

require presentation of a deposit insurance claim. See Aztec

General Agency v. Federal Deposit Ins. Corp., No. 93-1424, slip op.

at 6-7 (5th Cir. Feb. 7, 1994) (per curiam) (unpublished opinion)

(noting that even though FDIC-Receiver was aware of a claim for

payment of a letter of credit, the court lacked jurisdiction

because a claim had not been submitted to FDIC-Corporate for

payment of an insured deposit). As the FDIC noted in its brief,

"DeCell simply failed to sue the correct party, FDIC Corporate, on

its claim for deposit insurance and neglected to file a claim for

10
deposit insurance with FDIC Corporate."

A review of the record strengthens the conclusion that the

exhaustion requirement has not been waived. After a thorough

examination of the pleadings, we find that the FDIC originally

intervened solely as FDIC-Receiver. The pleadings, in both the

captions and the substance, denominate that the FDIC was appearing

in its receivership capacity. In fact, the Magistrate granted

DeCell permission to amend its complaint to include FDIC-Corporate

in a November 18, 1992 order—more than three years after FDIC-

Receiver had intervened as defendant on November 14, 1989. We

agree with the district court's conclusion that "[t]he notice of

removal and the intervenor's amended answer make it abundantly

clear ... that there was only one intervenor, FDIC-Receiver."

Thus, we disagree with DeCell's assertion that FDIC-Corporate was

a party to this litigation from the beginning.6

6
DeCell's contention that FDIC-Corporate must have
intervened because only FDIC-Corporate could have removed under
12 U.S.C. § 1819 is also unpersuasive. Although § 1819(b)(2)(B)
allows for removal, removal is not proper when: 1) the FDIC is a
party to the lawsuit, other than as a plaintiff, in its capacity
as Receiver of a state bank, and designated as the Receiver by
the exclusive appointment of State authorities; 2) the lawsuit
involves only the rights or obligations of depositors and the
bank itself; and 3) the lawsuit only involves the interpretation
of state law. See 12 U.S.C. § 1819(b)(2)(D). DeCell argues that
these three conditions are met in this case; thus, because
removal was allowed, it must have been undertaken by FDIC-
Corporate, as FDIC-Receiver would have been statutorily precluded
from removing.

Unfortunately for DeCell, the Magistrate allowed FDIC-
Receiver to remove because "the FDIC has been given latitude
in circumventing subparagraph (D) exceptions," and because
federal issues were involved in the lawsuit. We agree with
these conclusions. Thus, DeCell cannot assert that the mere
act of removal was proof that FDIC-Corporate was involved in

11
 In addition, the record clearly demonstrates that FDIC-

Receiver and FDIC-Corporate timely raised their jurisdictional

challenges as soon as they became aware that DeCell was claiming

the letter of credit as an "insured deposit." Initially, DeCell's

actions were only against Guaranty and JRL, as the original

petition and the first amended original petition did not make an

insurance deposit claim. After the intervention of FDIC-Receiver,

DeCell's lawsuit was viewed "as a claim against the receivership

estate," rather than as a claim for deposit insurance. Therefore,

FDIC-Receiver appropriately asserted in its answer that DeCell was

an unsecured creditor entitled only to a pro rata asset

distribution, if entitled to any recovery at all.

Our review of the record indicates that DeCell's first

assertion that it was an insured depositor was in pre-trial

proceedings in October of 1991. As soon as this deposit insurance

claim was made, FDIC-Receiver filed a Memorandum of Authorities

contending that DeCell had not raised an insured deposit claim in

its pleadings, that the district court had no jurisdiction over

insured deposit claims, and that FDIC-Corporate was the proper

party to be sued. Moreover, as soon as FDIC-Corporate was joined

as a defendant, it too raised the same jurisdictional and

exhaustion defenses. Simply put, there is nothing in the record to

indicate that FDIC-Corporate was present in the lawsuit from the

initial intervention, nor does the record indicate that FDIC-

Corporate waived its right to require submission of a deposit

the lawsuit at that time.

12
insurance claim.

Finally, any assertion that the FDIC's alleged waiver allowed

the district court to exercise jurisdiction is wholly without

merit. As mentioned, even if we assume that FDIC-Corporate waived

its statutory right to make a "final determination," § 1821(f)(4)

clearly provides for review only in the circuit courts of appeal,

not in the district courts. Inasmuch as DeCell is making a subject

matter jurisdiction argument, the law is clear that subject matter

jurisdiction cannot be waived. See Warren v. United States, 874

F.2d 280, 281-82 (5th Cir.1989); Forsythe v. Saudi Arabian

Airlines Corp., 885 F.2d 285, 289 n. 6 (5th Cir.1989).

C. District Court Designation Under § 1821(f)(3)(B)

DeCell also contends "that by removing the case, then failing

to object to the pendency of DeCell's request for deposit insurance

for almost 2 years, FDIC had made a de facto designation of the

district court to hear the case." DeCell relies on the language of

§ 1821(f)(3)(B) which notes that "the Corporation may require the

final determination of a court of competent jurisdiction before

paying any such claim." For many of the reasons already discussed,

this contention is without merit.

First, as mentioned, both FDIC-Receiver and FDIC-Corporate

made timely jurisdictional objections to DeCell's failure to file

a deposit insurance claim with FDIC-Corporate. Contrary to

DeCell's assertion that two years had passed before an objection

was made, our review of the record indicates that jurisdictional

objections were made as soon as DeCell first claimed to be an

13
insured depositor. Neither FDIC-Receiver nor FDIC-Corporate

invoked § 1821(f)(3)(B) in any other manner.

Second, FDIC-Receiver's removal to federal court cannot be

construed as a de facto designation of district court jurisdiction

over FDIC-Corporate. As discussed, FDIC-Receiver and FDIC-

Corporate are wholly separate entities with wholly separate

functions. Moreover, we have previously held that "removing a suit

instigated by [the plaintiff] to federal court is not the

functional equivalent of voluntarily requesting judicial

determination under § 1821(f)(3)(B)." Aztec General Agency v.

Federal Deposit Ins. Corp., No. 93-1424, slip op. at 7 n. 5 (5th

Cir. Feb. 7, 1994) (per curiam) (unpublished opinion). In short,

DeCell's de facto designation argument is not supported by the

facts or the law.

D. Due Process

It is undisputed that FDIC-Corporate has not promulgated

regulations establishing procedures for resolving deposit insurance

claims. DeCell contends that requiring the formal submission of a

deposit insurance claim to FDIC's administrative process—a process

with admittedly no regulations—amounts "to an unconstitutional

denial of due process and a taking of private property for public

use without just compensation."

At best, however, DeCell's position is premature. As an

initial matter, the statutory language of § 1821(f) clearly states

that the promulgation of regulations is not mandatory. Section

1821(f)(3)(A) provides that in the case of disputed deposit

14
insurance claims, "the Corporation may resolve such disputed claim

in accordance with regulations prescribed by the Corporation

establishing procedures for resolving such claims" (emphasis

added). Similarly, § 1821(f)(3)(B) begins "[i]f the Corporation

has not prescribed regulations establishing procedures for

resolving disputed claims...." Thus, the statutory language

contemplates that formal regulations might not be prescribed.

Second, our cases have previously found that the deposit

insurance claims process can withstand constitutional scrutiny.

See Kershaw v. Resolution Trust Corp., 987 F.2d 1206, 1210 (5th

Cir.1993) (per curiam); Nimon v. Resolution Trust Corp., 975 F.2d

240, 247-48 (5th Cir.1992). In Nimon, the petitioners claimed that

their due process rights were violated in a deposit insurance

dispute because the Resolution Trust Corporation ("RTC") failed to

prescribe formal procedural rules; instead, the petitioner's claim

was handled through informal procedures. See Nimon, 975 F.2d at

247. Although we acknowledged that RTC's decision "affects a

property right of the [plaintiffs], implicating the [D]ue [P]rocess

[C]lause of the U.S. Constitution," id., we found no due process

violation, even though we explicitly noted that the "RTC has no

regulations formalizing insurance dispute resolution," and that

"FIRREA does not require FDIC to prescribe regulations governing

the resolution of these disputes." Id. at 247-48.

In Nimon, however, we did examine whether the RTC's informal

procedures satisfied the demands of due process. See id. at 247.

As we noted:

15
 We make three inquiries in determining the requirements of due
process in a particular case: (1) the private interests that
will be affected by the agency's action; (2) the risk of
erroneous deprivation due to the procedures used and the
reduction of that risk through additional or substitute
procedures; and (3) the interests of the government,
including the burden that would be imposed by additional or
substitute procedures.

Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893,

903, 47 L.Ed.2d 18 (1976)) (emphasis added). In the present case,

DeCell has not submitted a formal deposit insurance claim to FDIC-

Corporate; thus, the administrative procedures, formal or

informal, have not been invoked. We cannot entertain a due process

claim in this particular case because we have no informal

procedures to evaluate under the Mathews framework; simply put,

DeCell's due process claim is premature because no claim has been

submitted for FDIC-Corporate's determination. Cf. Metro County

Title, Inc. v. Federal Deposit Ins. Corp., 13 F.3d 883, 887-88 (5th

Cir.1994) (finding no due process violation after evaluating the

FDIC's informal handling of a claim under the Mathews framework).

With respect to both formal and informal procedures in this case,

we cannot find a violation of DeCell's due process rights.7

7
DeCell's reliance on the Supreme Court's decision in Coit
Independence Joint Venture v. Federal Savings and Loan Insurance
Corp. ("FSLIC"), 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602
(1989), does not further its argument. In Coit, the Supreme
Court held that Coit was not required to exhaust the
administrative procedures of the FSLIC because they were
"inadequate." See id. at 587, 109 S.Ct. at 1374-75. The Court
noted that there was a formal regulation allowing the FSLIC to
retain a claim for further review for an indefinite period of
time. See id. at 586, 109 S.Ct. at 1375 ("Under the current
regulations, ... no time limit is established for FSLIC's
consideration of those claims retained for further review."). In
addition, the Court observed that Coit's claim had been under
consideration for thirteen months, yet the FSLIC had still not

16
 E. "Informal" Proof of Claim

Even though DeCell admits in its brief that it "did not file

any proof of claim with FDIC at any time," DeCell argues that its

suit against Guaranty sufficed as an informal proof of claim to

invoke FDIC-Corporate's administrative procedures. For a number of

reasons, we find this argument unpersuasive.

First, as mentioned, only FDIC-Receiver initially substituted

for Guaranty, and at that time, DeCell's petition did not make a

deposit insurance claim. Thus, DeCell's lawsuit against Guaranty

failed to provide notice that the § 1821(f) deposit insurance

procedures were applicable. Second, even if the lawsuit did

provide notice of a deposit insurance claim, only FDIC-Receiver

would have had that notice. FDIC-Corporate, the entity responsible

for handling the deposit insurance claims, was not joined in the

lawsuit until a later time. Finally, even if we assume (without

deciding) that an "informal proof of claim" is legitimate, the

made a determination. See id.

In Coit, however, these facts led the Supreme Court to
waive the exhaustion requirement; a due process violation
was neither mentioned nor addressed by the Court. Moreover,
unlike the FSLIC regulation that was facially inadequate in
Coit, FDIC-Corporate has no formal regulations regarding the
time periods for consideration of claims. Similarly, in
contrast to Coit's submission of its claim to the FSLIC,
DeCell has not yet submitted its claim to FDIC-Corporate;
thus, we cannot evaluate whether the informal procedures
used by FDIC-Corporate are "inadequate." Finally, we have
previously affirmed the deposit insurance exhaustion
requirement, see Aztec General Agency v. Federal Deposit
Ins. Corp., No. 93-1424, slip op. at 6-7 (5th Cir. Feb. 7,
1994) (per curiam) (unpublished opinion), and even if we
were to waive it, § 1821(f) does not provide for review in
the district courts.

17
district court would still not have jurisdiction; first, because

FDIC-Corporate has yet to make a "final determination," and second,

because § 1821(f)(4) provides for review only in the circuit courts

of appeal. Based on this analysis, the "informal proof of claim"

argument is not helpful to DeCell.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

dismissing DeCell's claims against FDIC-Receiver and FDIC-Corporate

for lack of jurisdiction is AFFIRMED.

18