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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 29, 2004 Decided May 18, 2004
No. 03-5198
WELLS FARGO BANK, N.A., ET AL.,
APPELLANTS
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
APPELLEE
Consolidated with
03-5199, 03-5214
Appeal from the United States District Court
for the District of Columbia
(Nos. 01cv2440, 01cv2445)
Carol R. Van Cleef argued the cause and filed the briefs for
appellants. Gloria B. Solomon entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Lawrence H. Richmond, Counsel, Federal Deposit Insur-
ance Corporation, argued the cause for appellee. With him
on the brief were Ann S. DuRoss, Assistant General Counsel,
and Colleen J. Boles, Senior Counsel.
Before: SENTELLE, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Responding to a congressional man-
date, the Federal Deposit Insurance Corporation imposed a
one-time assessment on certain financial institutions in order
to boost the amount of money in the fund that insures
savings-and-loan deposits. Several dozen financial institu-
tions now challenge the method the FDIC used to calculate
how much money it needed to raise—a calculation that in turn
determined the assessment the FDIC imposed. The district
court disagreed with the institutions’ assertion that the rele-
vant statute unambiguously precludes the FDIC’s method,
and therefore dismissed their complaint. For the same rea-
son, we affirm.
I.
Reacting to the failure of hundreds of savings and loan
associations in the 1980s, Congress passed the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989,
Pub. L. No. 101–73, 103 Stat. 183 (1989) (codified as amended
in scattered sections of 12 U.S.C.). Known as FIRREA and
designed to protect depositors against similar failures in the
future, the law amended the Federal Deposit Insurance Act
by, among other things, creating a Bank Insurance Fund to
cover deposits of commercial banks and a Savings Association
Insurance Fund to cover deposits of savings and loan associa-
tions. The two funds, administered by appellee Federal
Deposit Insurance Corporation (FDIC), and known as BIF
and SAIF, respectively, are financed by assessments levied
on the financial institutions whose deposits they insure.
Since its inception, SAIF has had a higher assessment rate
than BIF, largely because the savings and loan associations it
insures tend to be somewhat shakier than the banks insured
3
by BIF. Congress recognized that this rate disparity could
impel healthy savings associations to transfer their deposits
to banks or even convert themselves into banks. Because
such transfers and conversions would risk leaving SAIF with
inadequate funds to insure members’ deposits, FIRREA not
only imposed fees on ‘‘conversion transactions’’ that transfer
deposits between BIF members and SAIF members, but also
temporarily prohibited such transactions. See 12 U.S.C.
§ 1815(d)(2) (2000). Neither the moratorium nor the fees,
however, applied to so-called ‘‘Oakar transactions,’’ under
which a member of one fund acquires deposits from a mem-
ber of the other and continues to pay proportional assess-
ments into both funds. See id. § 1815(d)(3)(A)-(B). For
example, a BIF member that acquired deposits from a SAIF
member as part of an Oakar transaction would pay SAIF
assessments on the acquired deposits and BIF assessments
on its other deposits. See generally Wells Fargo, N.A. v.
FDIC, 310 F.3d 202, 204–05 (D.C. Cir. 2002). Acquired
deposits, known as adjusted attributable deposit amounts, or
AADA, are adjusted over time according to a mathematical
formula that accounts for subsequent growth. See 12 U.S.C.
§ 1815(d)(3)(C).
Concerned that SAIF was undercapitalized, Congress
passed the Deposit Insurance Funds Act of 1996, Pub. L. No.
104–208, §§ 2701–11, 110 Stat. 3009 (1996) (‘‘Funds Act’’), the
statute at issue in this case. The Funds Act required the
FDIC to impose a one-time assessment on certain deposits,
and to do so at a rate that would immediately bring the level
of SAIF assets up to the ‘‘designated reserve ratio.’’ See
Funds Act § 2702(a) (codified at 12 U.S.C. § 1817 note
(2000)). FIRREA defines the designated reserve ratio as
‘‘1.25 percent of estimated insured deposits,’’ see 12 U.S.C.
§ 1817(b)(2)(A)(iv)(I), and the Funds Act incorporates that
definition, see Funds Act § 2710(6) (codified at 12 U.S.C.
§ 1821 note (2000)).
In a final rule, the FDIC described how it calculated the
rate for the one-time assessment. See 61 Fed. Reg. 53,834
(Oct. 16, 1996) (codified at 12 C.F.R. pt. 327 (2004)). The
agency first determined the total amount of SAIF-insured
4
deposits—including, of importance to this case, AADA—to be
$688.1 billion. (In its calculations, the FDIC made other
adjustments not at issue in this appeal.) Next, the agency
calculated the balance SAIF would need in order to attain the
designated reserve ratio, that is, 1.25 percent of estimated
insured deposits. That balance was $8.6 billion, or $4.5 billion
more than SAIF’s balance at the time. Finally, the FDIC
calculated what assessment rate, when levied on the funds
that Congress designated for assessment (a designation not
challenged in this case), would produce the required $4.5
billion. That rate was 65.7 cents per one hundred dollars of
insured deposits.
After the FDIC imposed this assessment in late 1996,
several dozen financial institutions (which we will refer to
collectively as the Banks even though the group included
some savings and loan associations) complained to the agency
about its calculation of the assessment rate. They contended
that the Funds Act prohibited the FDIC from including
AADA, i.e., funds that BIF members had acquired from
SAIF members, in its calculation of the total amount of
SAIF-insured deposits. The reason, the Banks asserted, is
that in FIRREA Congress defined ‘‘SAIF reserve ratio’’—a
ratio that the Banks say lay at the heart of the calculations
the FDIC made in preparing for the assessment—using a
narrower phrase than what appears in the statutory definition
of designated reserve ratio. Specifically, whereas in FIR-
REA Congress defined designated reserve ratio simply as
‘‘1.25 percent of estimated insured deposits,’’ it defined SAIF
reserve ratio as ‘‘the ratio of the net worth of the [SAIF] to
the value of the aggregate estimated insured deposits held in
all [SAIF] members.’’ 12 U.S.C. § 1817(l)(7) (emphasis add-
ed). Since AADA are held by BIF members, the Banks
argued, they do not qualify as ‘‘insured deposits held in all
[SAIF] members.’’ According to the Banks, had the FDIC
excluded AADA, they would have paid over $800 million less
as part of the one-time assessment.
The FDIC’s Board of Directors issued a decision denying
the Banks’ refund request, largely on the ground that AADA
can constitute ‘‘insured deposits held in all [SAIF] members’’
because under FIRREA financial institutions can be mem-
5
bers of both BIF and SAIF. Challenging this decision, the
Banks filed two separate suits in the United States District
Court for the District of Columbia, charging that the Funds
Act unambiguously required the FDIC to exclude AADA
from its calculation of SAIF-insured deposits. In two sepa-
rate opinions, the district court rejected their argument and
granted the FDIC’s motion to dismiss, holding that the Funds
Act unambiguously required the FDIC to include AADA.
The court went on to hold that even were the statute ambigu-
ous, the FDIC’s approach was reasonable. Most of the
Banks, appellants herein, now appeal, and because the two
cases present the same issue, we consolidated them and now
resolve them together.
II.
We review de novo the district court’s dismissal of the
complaint, see, e.g., Taylor v. FDIC, 132 F.3d 753, 761 (D.C.
Cir. 1997), and ‘‘therefore, in effect, review directly the deci-
sion of the [agency],’’ Lozowski v. Mineta, 292 F.3d 840, 845
(D.C. Cir. 2002). Because the Banks challenge the FDIC’s
interpretation of a statute the agency is charged with imple-
menting, we proceed under the well-known framework set
forth in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). We thus begin by asking
‘‘whether Congress has directly spoken to the precise ques-
tion at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Con-
gress.’’ Id. at 842–43. Normally, were we to find the statute
ambiguous, we would next ask ‘‘whether the agency’s answer
[to the precise question at issue] is based on a permissible
construction of the statute.’’ Id. at 843. In this case, howev-
er, the Banks make a Chevron step-one argument only,
asserting that the Funds Act unambiguously resolves the
question of whether the FDIC was to include AADA for
purposes of calculating the proper assessment rate. They
never argue that even if the Funds Act is ambiguous, they
should still prevail because the FDIC’s interpretation of the
statute is unreasonable. See Appellants’ Br. at 26 (‘‘[T]he
6
Funds Act is not ambiguousTTTT Accordingly, there is no
basis for reaching Chevron step two in this case.’’). We thus
begin and end our analysis at Chevron step one.
The Banks assert that the Funds Act clearly required the
FDIC to exclude AADA in calculating the SAIF reserve ratio
because a key phrase in that ratio’s definition is ‘‘estimated
insured deposits held in all [SAIF] members.’’ 12 U.S.C.
§ 1817(l)(7) (emphasis added). ‘‘On its face,’’ the Banks
insist, ‘‘this phrase does not include any deposits held by BIF
members.’’ Appellants’ Br. at 18. The FDIC responds that
the Banks’ focus on the term ‘‘SAIF reserve ratio’’ is mis-
placed because the Funds Act does not use that term. In-
stead, it refers to the designated reserve ratio, which—
because it applies to BIF as well as SAIF—omits the words
‘‘held in all [SAIF] members’’ and simply uses the phrase
‘‘estimated insured deposits.’’ See Funds Act § 2710(6). Ac-
cording to the FDIC, ‘‘[f]ocusing on the real statutory lan-
guage quickly demolishes the Banks’ ‘plain language’ argu-
ment.’’ Appellee’s Br. at 19. The Banks reply that even
though the Funds Act mentions only the designated reserve
ratio, that ratio ‘‘is not an independent concept,’’ but ‘‘must be
interpreted in tandem with the SAIF reserve ratio.’’ Appel-
lants’ Reply Br. at 2.
We need not resolve this dispute, for even assuming that
the Banks are correct, their argument suffers from a simple
but fatal flaw: it depends entirely on the erroneous assump-
tion that the Funds Act unambiguously precludes financial
institutions from membership in both BIF and SAIF. The
argument depends entirely on this assumption because if
financial institutions could be members of both funds, then
the phrase ‘‘insured deposits held in all [SAIF] members’’
would encompass AADA even though AADA are held by BIF
members, as those BIF members could also be SAIF mem-
bers. The assumption is flawed, and hence the argument’s
dependence on it fatal, because just last term we squarely
rejected the assumption, ruling in the identically named case
of Wells Fargo, N.A. v. FDIC that nothing in FIRREA
clearly precludes institutions from membership in both funds.
See 310 F.3d at 206. ‘‘[S]ection 1817(l)‘s definitions’’ of BIF
7
and SAIF, we held, ‘‘do not prohibit institutions from being
members of both funds simultaneously.’’ Id. The Banks may
prevail, therefore, only if we find statutory language that we
deemed ambiguous last term to be unambiguous now.
Rather than urging us to overrule Wells Fargo, something
this panel obviously lacks authority to do, see LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc), the
Banks argue that Wells Fargo is inapplicable to this case.
Their reasons for so thinking, however, are unpersuasive.
First, the Banks insist that this case involves a different
question than did Wells Fargo. Although the ultimate ques-
tion in that case was indeed different—hardly surprising, as
one would hope parties wouldn’t re-litigate the exact issue
they lost on eighteen months ago—the intermediate question,
on which the ultimate question depended in that case and also
depends here, was identical: does the statute clearly bar
financial institutions from membership in both BIF and
SAIF? Our answer to that question in Wells Fargo must also
be our answer here, and that answer dooms the Banks’
Chevron step-one argument, the only argument they make.
Next, the Banks point out that in Wells Fargo we interpret-
ed the language of FIRREA, while here we interpret the
language of the Funds Act. That makes no difference,
however, because the Funds Act draws its definitions of the
key terms—‘‘SAIF member’’ and ‘‘BIF member’’—from FIR-
REA: ‘‘[t]he terms ‘Bank Insurance Fund member’ and
‘Savings Association Insurance Fund member’ have the same
meanings as in’’ FIRREA. Funds Act § 2710(2). As we held
in Wells Fargo, those definitions do not unambiguously bar
financial institutions from belonging to both funds, meaning
that AADA can be ‘‘insured deposits held in all [SAIF]
members.’’
Finally, the Banks point out that in the Funds Act, Con-
gress used a newly created term, ‘‘SAIF-assessable deposit,’’
to describe funds subject to the one-time assessment. See
Funds Act § 2710(8). Because the new term specifically
includes AADA, the Banks argue that the phrase ‘‘deposits
held in all [SAIF] members’’—which the Banks say the FDIC
8
used in determining the size of the assessment—must not
include AADA. Otherwise, ‘‘it would not have been necessary
for Congress to create the new term.’’ Appellants’ Br. at 19.
Indeed, the Banks add, ‘‘Congress’s decision to create a new
term demonstrates its recognition that BIF-member AADA
was not a deposit held in a SAIF member for purposes of the
Funds Act.’’ Id.
Like the Banks’ basic argument, this contention rests on a
false premise. Although it is certainly true that ‘‘[w]hen
Congress uses different language in different places in the
same statute, a court must presume that Congress intended
the language to have different meanings,’’ id. at 19 (citing
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)), that
rule has no applicability to this case. As noted above, the
Funds Act nowhere uses the term SAIF reserve ratio, which
contains the phrase ‘‘deposits held in all [SAIF] members.’’
The Act mentions only the designated reserve ratio, which
omits that phrase. Hence, the Banks’ assertion that we
should interpret the phrase as excluding AADA because it
appears in the same statute as the term ‘‘SAIF-assessable
deposits,’’ which explicitly includes AADA, fails, for in fact the
two do not appear in the same statute.
In any event, we disagree with the Banks’ argument that
Congress must have created the new term because it knew
that the phrase ‘‘deposits held in all [SAIF] members’’ unam-
biguously excluded AADA. Congress may instead have
reached the same conclusion we did in Wells Fargo, i.e., that
the phrase is ambiguous because FIRREA’s (and hence the
Funds Act’s) definitions of BIF member and SAIF member
do not preclude dual membership. Rather than use an
ambiguous phrase, Congress may have decided to create and
use an unambiguous one. To be sure, we cannot know
whether Congress made such a decision, but given the possi-
bility that it did—a possibility we think no less plausible than
the Banks’ explanation for Congress’s action—we decline the
Banks’ invitation to declare unambiguous the language that
we deemed ambiguous just last term.
9
The district court’s judgments are affirmed.
So ordered.