
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1548                            COMMONWEALTH OF MASSACHUSETTS,                                Plaintiff, Appellant,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION                                          and                        FEDERAL DEPOSIT INSURANCE CORPORATION,                    as Receiver for Bank Five for Savings, et al.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of this Court  issued on December  19, 1996, is          amended as follows:               On  page  2, third  line from  the  bottom, the  citation to            1821(a)(2)(B)(5), (6) should read   1821(a)(5), (6).                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1548                            COMMONWEALTH OF MASSACHUSETTS,                                Plaintiff, Appellant,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION                                          and                        FEDERAL DEPOSIT INSURANCE CORPORATION,                    as Receiver for Bank Five for Savings, et al.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                         Selya, Cyr and Lynch, Circuit Judges.                                               ______________                                    ______________               Thomas O. Bean, Assistant  Attorney General, with whom Scott               ______________  ___________________________            _____          Harshbarger, Attorney General of Massachusetts, was on brief, for          ___________  _________________________________          appellant.               Mitchell  E.F.  Plave, Counsel,  with  whom  Ann S.  DuRoss,               _____________________  _______               ______________          Assistant General  Counsel,  and Colleen  B.  Bombardier,  Senior          __________________________       _______________________   ______          Counsel, were  on  brief  for appellee  FDIC,  in  its  corporate          _______          capacity.               Leslie Randolph, Counsel, with whom Ann S. DuRoss, Assistant               _______________  _______            _____________  _________          General Counsel, and Robert D. McGillicuddy, Senior Counsel, were          _______________      ______________________  ______________          on  brief  for  appellee FDIC,  as  Receiver  for  Bank Five  for          Savings, et al.                                 ____________________                                  December 19, 1996                                 ____________________                      LYNCH, Circuit  Judge.   Against the backdrop  of a                      LYNCH, Circuit  Judge.                             ______________            general  economic   decline   and  tightened   federal   bank            regulations, Massachusetts suffered forty-eight bank failures            between 1987 and 1994.  This case is part of the aftermath of            that financial crisis.  At  issue is whether the Commonwealth            of  Massachusetts,   acting  under  its   abandoned  property            statute,  may obtain  either  the  federal deposit  insurance            proceeds  or  the  pro  rata   distributions  from  abandoned            accounts  in failed Massachusetts  banks.   Considerable sums            are at stake.                                          I.                      The  Federal  Deposit  Insurance   Corporation  was            created  by the Banking Act of 1933,  Pub. L. No. 73-66,   8,            48 Stat. 162, to alleviate hardships caused by bank failures.            See S.  Rep. No. 584, 72d  Cong., 1st Sess. 10  (1932).1  The            ___            agency  in its  corporate capacity  ("FDIC-Corporate") offers            insurance  on depositors' accounts  for up  to $100,000.   12            U.S.C.   1821(a)(1)(B).   Participating banks and thrifts pay            premiums  to the FDIC.   Those premiums are  used to maintain            two  insurance funds, the Bank Insurance Fund and the Savings            Association Insurance Fund.   Id.   1821(a)(5), (6).   When a                                          ___                                            ____________________            1.  The Banking  Act of 1933 amended the Federal Reserve Act,            Pub. L. No. 63-43,  38 Stat. 251 (1913).   Congress revisited            the deposit insurance provisions in 1935,  and again in 1950,            when  these provisions  were  amended and  made  part of  the            Federal  Deposit Insurance Act ("FDIA"), Pub. L. No. 81-97,              2(1), 64 Stat. 873.                                         -2-                                          2            bank  fails, FDIC-Corporate  draws  money from  one of  these            funds  and either  pays  the insurance  proceeds directly  to            depositors  as an insured deposit or transfers the money to a            new bank as a transferred deposit, using whichever method  is            more cost effective.   Id.    1821(f).  Upon  payment to  the                                   ___            depositors,   FDIC-Corporate   becomes   subrogated  to   the            depositors'  rights   against  the  failed  banks.     Id.                                                                      ___            1821(g)(1).                      The  FDIC acting  as  a receiver  ("FDIC-Receiver")            winds  up  the affairs  of failed  banks and  distributes any            remaining  assets pro rata to  the bank's creditors.   Id.                                                                      ___            1821(c)(2)(A)(ii); 1821(d)(11)(A).   FDIC-Corporate may bring            a claim against FDIC-Receiver for the insured depositors' pro            rata shares  of any distributed  liquidated assets.   See id.                                                                  ___ ___              1821(g)(1).                      Before 1988, FDIC-Corporate  had generally  honored            claims by states, pursuant  to their abandoned property acts,            for the insured value of abandoned deposits at failed banks.2            Treatment  of  Abandoned  Deposits  and  Property  in  Failed            _____________________________________________________________            Depository  Institutions:  Hearing  Before  the  Subcomm.  on            _____________________________________________________________            Financial Institutions Supervision, Regulation  and Insurance            _____________________________________________________________            of  the House  Comm. on Banking,  Finance and  Urban Affairs,            ____________________________________________________________                                            ____________________            2.  "States as sovereigns may take custody of or assume title            to abandoned  personal property  as bona vacantia,  a process            commonly  (though  somewhat  erroneously)   called  escheat."            Delaware v.  New York,  507 U.S.  490,  497 (1993).   All  50            ________     ________            states have statutes providing for such "escheat."                                         -3-                                          3            102d  Cong., 2d Sess. 149 (1992) (Letter of Alice C. Goodman,            Acting Director, Office of Legislative Affairs, FDIC).  FDIC-            Receiver continues  to permit  states that file timely claims            pursuant to the provisions governing general creditors of the            receivership estate to act on behalf of absent depositors and            to claim those depositors' pro rata shares of any distributed            liquidated  assets.   Id.  at  95 (Testimony  of  Alfred J.T.                                  ___            Byrne, General  Counsel, FDIC).   However, after  1988, FDIC-            Corporate began  declining to pay states the insured value of            abandoned accounts.   Id. at 97-98.   FDIC-Corporate asserted                                  ___            that  its original  policy  was inconsistent  with the  plain            language  of the  pre-1993 version  of 12  U.S.C.    1822(e),            which  provided  that  insurance   funds  not  claimed  by  a            depositor  within eighteen  months  of the  appointment of  a            receiver reverted back to the FDIC.  Id; see also 12 U.S.C.                                                   __  ___ ____            1822(e) (1989) (current version enacted 1993).                      The states,  with  Massachusetts in  the  vanguard,            fought back.  They lobbied Congress, leading to the enactment            of  compromise legislation, the Unclaimed Deposits Amendments            Act  of  1993 ("UDAA"),  Pub. L.  No.  103-44, 107  Stat. 220            (1993), under which  the states receive the  insured value of            abandoned deposits  for a  10-year  period.   If a  depositor            fails  to  make  a  claim during  this  time,  the  insurance            proceeds on  the abandoned account  must be  returned to  the                                         -4-                                          4            FDIC  and all rights of  the depositor are  extinguished.  12            U.S.C.   1822(e)(5); see infra note 7.                                 ___ _____                      However, the UDAA expressly made the former version            of     1822(e) applicable  to  banks  placed in  receivership            between  January  1,  1989  and   June  28,  1993,  with  one            additional  proviso.   Claims by  insured depositors  at such            banks  made  prior to  the  termination  of the  receivership            estate  are  not time-barred.   Pub.  L.  No. 103-44,    2(b)            (1993).   Thus,  depositors at  banks placed  in receivership            between  January 1, 1989 and June 28, 1993 have the longer of            eighteen months or until  the termination of the receivership            estate  to file  claims with  FDIC-Corporate for  the insured            value of their accounts.  Id.                                      ___                      Massachusetts  also turned to  the federal judicial            system for redress, claiming it is entitled to  the insurance            proceeds  and  the  pro  rata  distributions  from  abandoned            deposits   in  thirty-three  failed Massachusetts  banks  for            which the  FDIC was appointed  receiver between May  1990 and            December 1992.3                                         II.                      The  Commonwealth has  its own  comprehensive legal            framework,   the     Massachusetts  Abandoned   Property  Act            ("MAPA"), Mass. Gen. L. ch.  200A, for dealing with abandoned                                            ____________________            3.  At  least one  similar  suit, Resolution  Trust Corp.  v.                                              _______________________            California, 851 F. Supp. 1453 (C.D. Cal. 1994), has also been            __________            brought in federal court.                                         -5-                                          5            property.   The federal government has  a similarly intricate            statutory  and regulatory scheme  relating to  bank failures.            The dispute  between the  Commonwealth and the  FDIC involves            the intersection of these two bodies of law.                      The MAPA was enacted both  to protect the rights of            true owners when and  if they appear and to  bring additional            revenues  to  the  Commonwealth's   treasury.    Treasurer  &                                                             ____________            Receiver  Gen. v. John Hancock Mut. Life Ins. Co., 446 N.E.2d            ______________    _______________________________            1376,  1383 (Mass.  1983).   It  creates  a presumption  that            deposits are abandoned unless the owner  has, during the past            three  years,  either communicated with the deposit holder or            engaged in certain other activities.  Mass. Gen. L. ch. 200A,               3.   Deposit  holders,  including banks,  are  required to            submit  annual reports  to  the State  Treasurer listing  the            names and  addresses of  depositors deemed to  have abandoned            accounts valued at more  than $100.  Id.   7.  The banks must                                                 ___            send  letters to the owners  of such accounts  at least sixty            days  before  filing  the  report,  giving  notice  that  the            deposits  are about to be  surrendered to the  custody of the            Commonwealth.  Id.   7(A).                           ___                      Unless a depositor claims an abandoned account, the            bank must deliver  the funds  into the custody  of the  State            Treasurer,  who  publishes a  notice  that  the accounts  are            deemed abandoned.  Id.    8A, 8.  The money is then placed in                               ___            an  Abandoned Property Fund and  used for the  benefit of the                                         -6-                                          6            Commonwealth.  Id.   9(e).  The owner of an abandoned account                           ___            has an unlimited period to submit a claim for the funds.  Id.                                                                      ___              10(a).  If the State Treasurer determines that the claim is            valid, the owner  receives the  value of the  account plus  a            small  amount of monthly interest.4   Id.    10(e).  However,                                                  ___            only about  25% of abandoned  accounts are ever  claimed; the            rest are retained by the Commonwealth.                      The dispute over deposits  held in failed banks and            deemed  abandoned  under  the  MAPA  arose  in  early  1992.5            Following  unsuccessful attempts  to  achieve  a  settlement,            Massachusetts  filed  a  complaint  against  FDIC-Receiver in            federal district court  in January 1994 seeking  the pro rata            value  of  the  deposits  from the  failed  banks'  remaining            assets.     In  March  1994,  Massachusetts   also  filed  an            administrative  claim  with  FDIC-Corporate for  the  insured            value of the unclaimed deposits, arguing that it was entitled            to these funds under the MAPA.6                                            ____________________            4.  This interest cannot exceed  five-twelfths of one percent            per month.  Id.                        ___            5.  This   dispute   initially   involved  both   pre-closing            deposits, deposits  abandoned before the banks  were put into            receivership, and post-closing  deposits, deposits  abandoned            after  the  banks  were  put  into  receivership.    However,            Massachusetts has since conceded that  it is not entitled  to            the  post-closing  deposits, Massachusetts  v.  FDIC, 916  F.                                         _____________      ____            Supp. 54, 57 (D. Mass. 1996), and so the term "deposits" here            refers to pre-closing deposits only.            6.  The Commonwealth  is not  attempting to recover  the same            money  twice: it only seeks  the uninsured value  of the pre-            closing  deposits from  FDIC-Receiver to  the extent  that it                                         -7-                                          7                      FDIC-Corporate rejected the claim, stating that the            MAPA  was pre-empted by  12 U.S.C.    1822(e) (1989) (current            version enacted 1993).7  Massachusetts petitioned this  court            directly for review of the administrative claim.  This  court                                            ____________________            does not recover  the insured  value of  these deposits  from            FDIC-Corporate.            7.  The  pre-amendment  version,  the  operative  text  here,            stated:                           (e) Unclaimed deposits.   If,  after                               __________________                      the Corporation shall have given at least                      three months' notice to the  depositor by                      mailing  a copy thereof to his last-known                      address appearing  on the records  of the                      depository  institution  in default,  any                      depositor  in the  depository institution                      in  default  shall   fail  to  claim  his                      insured  deposit   from  the  Corporation                      within   eighteen    months   after   the                      appointment  of  the  receiver   for  the                      depository  institution  in  default,  or                      shall fail within such period to claim or                      arrange   to  continue   the  transferred                      deposit  with  the new  bank or  with the                      other   insured   depository  institution                      which  assumes  liability  therefor,  all                      rights  of  the  depositor   against  the                      Corporation with respect  to the  insured                      deposit,  and against  the  new bank  and                      such other insured depository institution                      with respect to the  transferred deposit,                      shall be  barred, and  all rights of  the                      depositor    against    the    depository                      institution    in    default   and    its                      shareholders, or  the receivership estate                      to which the Corporation may  have become                      subrogated, shall thereupon revert to the                      depositor.  The amount of any transferred                      deposits not claimed within such eighteen                      months'  period, shall be refunded to the                      Corporation.            12 U.S.C.   1822(e) (1989) (amended 1993).                                         -8-                                          8            held that it lacked jurisdiction and  transferred the case to            the district court for a ruling on the merits.  Massachusetts                                                            _____________            v.  FDIC,  47   F.3d  456,  457  (1st   Cir.  1995)  (initial                ____            jurisdiction to  hear appeals from the  FDIC's disposition of            claims  for  insurance benefits  lies  not  in the  court  of            appeals, but in the district court).  The cases against FDIC-            Corporate and FDIC-Receiver were consolidated in October 1995            by agreement of the parties.                      FDIC-Corporate moved to  dismiss, reasserting  that            the MAPA  is pre-empted  by federal statute.   FDIC-Corporate            moved in  the alternative for summary  judgment, arguing that            its  decision  to  deny  Massachusetts' claim  was  a  proper            exercise  of discretion.    At the  same time,  FDIC-Receiver            moved to dismiss on the  ground that Massachusetts' claim for            deposit  funds was time-barred because it  had not been filed            within  the 90-day period for  general creditors set forth in            12  U.S.C.    1821(d)(5).    Massachusetts  responded with  a            motion   for   summary   judgment   against   FDIC-Corporate.            Massachusetts v. FDIC, 916 F. Supp. at 57.            _____________    ____                      The   district  court,  in   a  carefully  reasoned            opinion, dismissed the insurance claim against FDIC-Corporate            and  entered  summary  judgment  for   FDIC-Receiver  on  the            creditor  claim.  Id. at 61.8   The allowance of both motions                              ___                                            ____________________            8.  FDIC-Receiver's motion to dismiss was treated as a motion            for  summary   judgment,  because  the   parties  asked  that            materials outside  the pleadings  be considered.   Id. at  60                                                               ___                                         -9-                                          9            is reviewed de novo.   Villafane-Neriz v. FDIC, 75  F.3d 727,                        __ ____    _______________    ____            730 (1st  Cir. 1996); Heno v.  FDIC, 20 F.3d  1204, 1205 (1st                                  ____     ____            Cir. 1994).  We affirm.                                         III.                      The  Commonwealth argues  two bases  for  its claim            against  FDIC-Corporate for  the  insured  value of  deposits            abandoned   in  failed  Massachusetts  banks:  its  abandoned            property  statute and  FDIC  regulations.   The claim  raises            certain issues.  The  first is how properly to  interpret the            relevant  version  of 12  U.S.C.    1822(e).   The  second is            whether this federal statute pre-empts the MAPA.  If it does,            the question  becomes whether the Commonwealth is nonetheless            entitled to the insurance  proceeds under any other provision            of federal law.                      A. Statutory Construction                      _________________________                      The Supreme  Court  has instructed  that the  first            task in  statutory construction is to  separate "the question            of the substantive (as  opposed to pre-emptive) meaning of  a            statute  [from]  the question  of whether  a statute  is pre-            emptive."   Smiley v. Citibank, 116 S. Ct. 1730, 1735 (1996).                        ______    ________            FDIC-Corporate's  primary  argument  is that  the  applicable            version of    1822(e)  reflects a clear  congressional intent            that insurance proceeds for  abandoned accounts revert to one            of  the FDIC  insurance funds.   FDIC-Corporate  also asserts                                            ____________________            (citing Fed. R. Civ. P. 12(c)).                                         -10-                                          10            that  its  interpretation  of  the  statute  is  entitled  to            deference under Chevron v. Natural Resources Defense Council,                            _______    __________________________________            Inc., 467 U.S. 837 (1984).            ____                      The Commonwealth counters that   1822(e) can hardly            be read  as demonstrating  a clear congressional  intent that            the  insurance  recoveries  referable to  abandoned  accounts            revert  to the FDIC when the agency itself applied a contrary            interpretation between 1950 and 1988.   Massachusetts further            argues that,  in this context, the new FDIC interpretation is            not  entitled  to  full  Chevron  deference.   FDIC-Corporate                                     _______            concedes  that before  1988 it  did not  consistently require            deposit insurance on abandoned accounts to be returned to the            federal government  rather than  turned over to  the states.9            It asserts, however, that, when the inconsistency was brought            to its attention in  late 1988, it determined that    1822(e)            required  these funds to revert to the FDIC.  Hearing, supra,                                                          _______  _____            at 97-98  (Testimony of  Alfred J.T. Byrne,  General Counsel,            FDIC).                                            ____________________            9.  This inconsistency may have  resulted from the FDIC's use            of three different  responses to bank failures,  one of which            was  known as a  purchase and assumption  transaction and did            not  involve either insured deposits or transferred deposits,            and  thus did not implicate   1822(e).  In mid-1989, the FDIC            modified  the   structure  of  its  purchase  and  assumption            transactions so  that they made use  of transferred deposits,            thus eliminating  this source of confusion.   Hearing, supra,                                                          _______  _____            at 97-98  (Testimony of  Alfred J.T. Byrne,  General Counsel,            FDIC).                                         -11-                                          11                      When  determining  the  substantive  meaning  of  a            statute,  "[f]irst,  always,  is  the  question   of  whether            Congress  has  directly spoken  to  the  precise question  at            issue."   Chevron, 467 U.S. at 842.   Here, the parties frame                      _______            the issue as   whether  a state, acting  under its  abandoned            property statute, may "claim"  the insured value of abandoned            deposits  held  in failed  banks.   The  crux of  the matter,            however,  is  whether  a  state acting  on  behalf  of absent            depositors may itself qualify as a depositor under   1822(e).            We do not  believe the  plain language of    1822(e)  answers            this question.  That the FDIC apparently viewed the matter in            inconsistent ways  reinforces this conclusion.  Other indicia            of   the  statute's  meaning,  particularly  the  legislative            history,  thus come into play.   Wilson v.  Bradlees, 96 F.3d                                             ______     ________            552, 555 (1st Cir. 1996).                      The Commonwealth's claim arises not under   1822(e)            as  it was originally enacted  in the 1935  amendments to the            Banking Act of 1933, but under the "reenactment" of   1822(e)            in  1993  as  part of  the  UDAA.10    Consequently, we  must                                            ____________________            10.  We use the term "reenactment" as a convenient shorthand.            Section 2(b) of the UDAA states:                      Special   rule   for   receiverships   in                      _________________________________________                      progress.--Section  12(e) of  the Federal                      ________                      Deposit  Insurance  Act  [subsec. (e)  of                      this  section] as  in effect  on  the day                      before the date of enactment of  this Act                      [June 28, 1993]  shall apply with respect                      to   insured   deposits   in   depository                      institutions  for  which the  Corporation                                         -12-                                          12            consider two different bodies of legislative history, that of            the original version of    1822(e) from 1935 and that  of the            UDAA.                      The 1935 legislative  history provides no  guidance            on  this issue.    However, the  proceedings  leading to  the            enactment of the  UDAA do shed some light on  the matter.  At            the  congressional hearings  on the  UDAA, two  senior agency            officials   testified   as   to   the    agency's   post-1988            interpretation of    1822(e).   Congress  did  not,  however,            cause the new version  of   1822(e) to apply  to banks placed            in  receivership between January  1, 1989 and  June 28, 1993,            despite lobbying by the states.                      Congress  is  often  deemed   to  have  adopted  an            agency's  interpretation of  a statute  when, knowing  of the            agency  interpretation,  it   reenacts  the  statute  without            significant  change.   FDIC v.  Philadelphia Gear  Corp., 476                                   ____     ________________________            U.S. 426, 437 (1986).  The legislative  history thus suggests                                                                 ________                                            ____________________                      was first appointed  receiver during  the                      period  between January  1, 1989  and the                      date of enactment  of this Act [June  28,                      1993],  except  that  such section  12(e)                      [subsec.  (e) of this  section] shall not                      bar   any   claim   made    against   the                      Corporation by an  insured depositor  for                      an  insured  or  transferred deposit,  so                      long as  such claim is made  prior to the                      termination of the receivership.            Technically, then,  Congress  did not  reenact  the  pre-1993            version of   1822(e), but rather caused it to apply  to banks            placed into receivership between January 1, 1989 and June 28,            1993.                                         -13-                                          13            that Congress wanted unclaimed  deposits in banks placed into            receivership  during the  relevant  period to  revert to  the            FDIC.  But FDIC-Corporate's  argument that "[b]y enacting the            UDAA,  Congress  has  erased  any  question  that     1822(e)            requires unclaimed  insurance benefits to be  returned to the            FDIC"  overstates the case.  Congress  may simply have chosen            not to enter the fray as to the past.   While the legislative            history  of the UDAA  is instructive, it  is not dispositive.            Congress'  intent   remains  ambiguous.     Accordingly,  the            question of  how much deference to  accord the interpretation            advanced by FDIC-Corporate must be considered.                      An  agency's  formal   interpretation,  through   a            rulemaking or  an adjudication, of a  statute it administers,            is accorded what has  come to be known as  Chevron deference.                                                       _______            Davis & Pierce, Administrative Law Treatise   3.5, at 119 (3d                            ___________________________            ed.  1994);  see also  Chevron, 467  U.S.  at 842-43.   Under                         ___ ____  _______            Chevron,  if  a  statute  is ambiguous  with  respect  to the            _______            contested issue, "the question  for the court is whether  the            agency's answer is based on a permissible construction of the            statute."    Chevron,  467 U.S.  at  843.    Contrary to  the                         _______            Commonwealth's argument,  an agency  certainly does  not lose            its entitlement to  deference by changing  its position on  a            matter  entrusted to it by  Congress.  Rust  v. Sullivan, 500                                                   ____     ________            U.S. 173, 186 (1991).  Indeed, Chevron itself involved a case                                           _______            where the agency changed its position in a formal rulemaking.                                         -14-                                          14            467 U.S.  at 863-64.   "[T]he whole  point of  Chevron is  to                                                           _______            leave the discretion provided by the ambiguities of a statute            with the implementing agency."  Smiley, 116 S. Ct. at 1734.                                            ______                      Less formal interpretations  -- policy  statements,            guidelines,  staff instructions, and  litigation positions --            are not  accorded full Chevron  deference.   Davis &  Pierce,                                   _______            supra,   3.5, at 119-20; see also Massachusetts v. Blackstone            _____                    ___ ____ _____________    __________            Valley  Elec. Co., 67 F.3d 981, 991 (1st Cir. 1995) (agency's            _________________            litigation  position not  entitled  to Chevron  deference).11                                                   _______            Here, the  change in policy regarding  treatment of abandoned            deposits could not have  been more informal.  The  new policy            was merely announced  in a  1988 presentation by  one of  the            FDIC's  staff  attorneys  at  a conference  of  the  National            Association  of  Unclaimed  Property  Administrators.   FDIC-                                            ____________________            11.  Chevron involves a  recognition that  courts are  poorly                 _______            situated to make policy choices concerning the interpretation            of statutes whose enforcement is entrusted  to administrative            agencies.  Judges are  not experts in the field, nor are they            part  of either of the  political branches.   Davis & Pierce,            supra,   3.3, at 113-15.    But commentators have also  noted            _____            the   possible  anti-democratic  implications   of  too  much            deference to the administrative agencies.  See, e.g., Farina,                                                       ___  ____            Statutory  Interpretation and  the  Balance of  Power in  the            _____________________________________________________________            Administrative State, 89 Colum. L. Rev. 452, 510-11 (1989).            ____________________                 According  full  Chevron  deference to  FDIC-Corporate's                                  _______            position  raises a  similar concern.   This  case in  the end            involves  a dispute  between  a state  and an  administrative            agency  of the  federal  government and,  as well,  questions            about  the  role Congress  intended state  law  to play  in a            federal scheme.   Congress should  not be lightly  thought to            have wished  such sensitive  questions to be  handled through            informal and  unexplained "policies"  of an  executive branch            agency.   The  FDIC  may, of  course,  choose to  solve  this            difficulty by engaging in more formal processes.                                         -15-                                          15            Corporate  then proceeded  to deny  states' proofs  of claim.            The  agency  did not  even issue  a  formal statement  of its            reasons for the change.                      This is not  to say that  FDIC-Corporate's position            would  be   entitled  to   no  deference.     An  established                                       __            administrative  practice   interpreting  a  statute   may  be            entitled to  deference even  if not  yet reduced to  specific            regulation.      Philadelphia   Gear,   476  U.S.   at   439.                             ___________________            Additionally,  less  formal   agency  determinations  may  be            accorded something less than full   Chevron deference.  Davis                                                _______            & Pierce, supra,   3.5, at 122.                      _____                      In  the  end,  however,   we  need  not   precisely            ascertain  the  amount  of   deference  to  give  the  FDIC's            interpretation of     1822(e),  because the outcome  would be            unaffected.    FDIC-Corporate's   reading  of  the  provision            comports  with  the  intent,  suggested  by  the  legislative            history of  the  UDAA, that  the insured  value of  abandoned            accounts  revert to  the  FDIC insurance  funds, where  these            resources  can be  used to  defray the  costs of  future bank            failures.  The states themselves pay nothing into the fund to            secure  insurance for their citizens.  Any payment to a state            is thus  a windfall, a result  at least in part  at odds with            the purpose of  the insurance system.12   The FDIC's position                                            ____________________            12.  Massachusetts responds  that allowing it to  receive the            insurance proceeds would advance the interests of depositors,            whose  claims would  never  be extinguished  under the  MAPA.                                         -16-                                          16            is, in context, an eminently reasonable interpretation of the            statute.                      B. Pre-emption                      ______________                      The  district court  held that    1822(e) pre-empts            the  MAPA with  respect  to the  insured  value of  abandoned            deposits in failed  banks.   Our review of  this decision  is            plenary.   New  Hampshire  Motor Transp.  Ass'n  v.  Town  of                       ____________________________________      ________            Plaistow, 67 F.3d 326, 329 (1st Cir. 1995), cert. denied, 116            ________                                    ____________            S. Ct. 1352 (1996).                      As a  general matter, the  standards articulated in            Louisiana  Public Service  Commission  v. FCC,  476 U.S.  355            _____________________________________     ___            (1986), guide  the inquiry  into whether a  federal provision            pre-empts state law:                      Pre-emption  occurs   when  Congress,  in                      enacting a federal  statute, expresses  a                      clear intent to  pre-empt state law, when                      there  is  outright  or  actual  conflict                      between  federal  and  state  law,  where                      compliance  with  both federal  and state                      law is in  effect physically  impossible,                      where there is implicit  in federal law a                      barrier   to   state  regulation,   where                      Congress has  legislated comprehensively,                      thus   occupying   an  entire   field  of                      regulation  and leaving  no room  for the                      States  to  supplement  federal  law,  or                      where the state law stands as an obstacle                      to  the  accomplishment and  execution of                                            ____________________            Under federal law, the  claim is extinguished eighteen months            after  the appointment of a receiver or at the termination of            the receivership estate, whichever occurs later.  Pub. L. No.            103-44,    2(b) (1993).   While the  Commonwealth's statement            may  be theoretically  true, experience  shows that  the vast            majority  of the  funds are  never claimed and  so it  is the            state that usually benefits.                                         -17-                                          17                      the  full objectives  of Congress.   Pre-                      emption may  result not only  from action                      taken  by  Congress  itself;   a  federal                      agency  acting  within the  scope  of its                      congressionally  delegated authority  may                      pre-empt state regulation.            Louisiana  Pub. Serv.  Comm'n, 476  U.S. at  368-69 (internal            _____________________________            citations omitted).                      The  inquiry  here  has  an  additional  layer   of            complexity due to Massachusetts' assertion, based on Delaware                                                                 ________            v.  New  York,  507  U.S.  490  (1993),  that  regulating the                _________            disposition of  abandoned property is a  traditional exercise            of  state  authority.    See  id.  at  502.    When  Congress                                     ___  ___            legislates in an area traditionally within the purview of the            states,  "we  start with  the  assumption  that the  historic            police powers of the  States were not to be superseded by the            Federal Act unless that was the clear and manifest purpose of            Congress."   Rice v. Santa  Fe Elevator Corp.,  331 U.S. 218,                         ____    ________________________            230  (1947).  Congress may  signal such intent  by an express            statement of  pre-emption or  by pervasive regulation  of the            area.    The  presumption  against pre-emption  may  also  be            rebutted when  there is a  dominant federal interest  or when            state  law produces  a result  inconsistent with  the federal            statute.  Id.                      ___                      There  is no  express  pre-emption  clause  in  the            legislation at issue here, such as there was in the statutory            scheme implicated in the recently decided Medtronics, Inc. v.                                                      ________________            Lohr,  116  S.  Ct.  2240,  2250  (1996).    Nor  is  federal            ____                                         -18-                                          18            regulation of bank failures so pervasive that it indicates an            intent  to  preclude  any  supplementation  by  state  law.13            However,  as  the district  court  aptly  noted, the  federal            government has  a strong interest in  regulating responses to            bank failures,   particularly  when the guarantee  of federal            insurance  is involved.  Massachusetts v.  FDIC, 916 F. Supp.                                     _____________     ____            at 59.                      There also are  actual conflicts  between the  FDIA            and the MAPA, and  so compliance with both federal  and state            law is not possible.   In light of the  reasonableness of the            determination that  states  acting under  abandoned  property            statutes do  not qualify  as depositors under    1822(e), any            state law conferring on  Massachusetts the right to act  as a            depositor necessarily conflicts directly with federal law.                      Another  fundamental inconsistency  between federal            and state law concerns  the ultimate disposition of insurance            proceeds  for abandoned  accounts.   While the  MAPA requires            that FDIC-Corporate  turn  over  insured  deposits  and  that                                            ____________________            13.  In other areas, where  Congress has intended to pre-empt            state abandoned property statutes, it has done so explicitly.            Cf.  31 U.S.C.     1322(c)(1) (certain  sums  to be  held  in            ___            Treasury  account  notwithstanding  state abandoned  property            laws).   Accordingly, any congressional intent  to occupy the            field here  could  be expected  to  be more  clearly  stated.            E.g., Louisiana Pub. Serv. Comm'n, 476 U.S. at 377 (declining            ____  ___________________________            to  find  field  pre-emption  where federal  statute  neither            expressly  refers  to  state  law nor  uses  the  word  "pre-            emption"); Grenier v. Vermont Log Bldgs.,  Inc., 96 F.3d 559,                       _______    _________________________            563 (1st  Cir. 1996)  (even with express  pre-emption clause,            Congress did not intend to occupy the field totally).                                         -19-                                          19            transferee  banks  turn  over  transferred  deposits  to  the            Commonwealth, under the relevant  version of   1822(e), these            funds  revert  to  one  of  FDIC-Corporate's  insurance funds            either  after eighteen  months or at  the termination  of the            receivership  estate, whichever  occurs later.   Pub.  L. No.            103-44,   2(b) (1993).                      And  there is   conflict,  not congruence,  between            other  portions  of  the  statutory  schemes  as well.    For            example, state and federal  law conflict over the time  frame            in which a  depositor may  claim an abandoned  deposit.   The            relevant   version  of   the  federal   provision  eventually            extinguished  a depositor's  right to  an  unclaimed deposit,            while  the MAPA  extends the right  of a depositor  to make a            claim in  perpetuity.14  Mass. Gen. L. ch. 200A,   10(a).  We            conclude that    1822(e) pre-empts  the MAPA with  respect to            the  federal  scheme  for  deposits that  are  abandoned  and            therefore  that  the  Commonwealth  is not  entitled  to  the            claimed insurance proceeds.                                            ____________________            14.  There  are other differences as well.   Section  1822(e)            requires FDIC-Corporate  to  mail two  notices regarding  any            unclaimed deposit, whatever its amount, the first thirty days            after  insurance  payments  are  inititated  and  the  second            fifteen  months   later,  to the  last  known address  of the            depositor.  The MAPA would require FDIC-Corporate to send out            additional  information:  a  report  to the  State  Treasurer            describing  any  property abandoned  under  the  MAPA, and  a            notice to the owner of any account containing more than $100.            Mass.  Gen.  L.  ch.  200A,      7,  7(A).    However,  while            different, these notice requirements do not actually conflict            with each other.                                         -20-                                          20                      Massachusetts  makes  a final  argument that  it is            entitled  to the insurance  proceeds because, as  a matter of            federal  law, it  is  a fiduciary  for  depositors.   Federal            regulations  acknowledge that  there may be  "fiduciaries" or            "custodians"  whose status  is  apparent from  the books  and            records of the  failed bank and who,  as a matter of  federal            law,  are permitted to stand  in the shoes  of the depositors            for some purposes.   12 C.F.R.    330.4,  330.6 (1996).   The            Commonwealth argues  that it  qualifies as a  fiduciary whose            status is  apparent from  the banks' deposit  account records            and  that   it  therefore  is  entitled   under  the  federal            regulations to the insured value of abandoned deposits.  This            argument fails because the Commonwealth locates the source of            its fiduciary  status in state  law provisions that  are pre-            empted by the applicable version of   1822(e).15                                         IV.                                            ____________________            15.  Additionally,  the district  court correctly  ruled that            the Commonwealth's  claimed fiduciary status  is not  readily            apparent from  the face of the banks' deposit account records            as required by  the regulations.  Massachusetts  v. FDIC, 916                                              _____________     ____            F.Supp.  at  60.    Massachusetts argues  that  the  district            court's cramped interpretation of  the term "deposit  account            records"  is at odds with the more expansive approach of FDIC                                                                     ____            v.  Fedders  Air Conditioning,  35  F.3d 18  (1st  Cir. 1994)                _________________________            (noting that  "deposit account records" include  a variety of            items).   But  unlike the  interpretation urged  here by  the            Commonwealth,  Fedders involved  discrete items  contained in                           _______            the  bank  files  and did  not  require  the  FDIC to  cross-            reference deposit  account  records with  abandoned  property            reports that  might  not even  be kept  at the  banks.   This            process would  "corrode the  FDIC's core mission"  of quickly            determining insurance liability.  Massachusetts v. FDIC,  916                                              _____________    ____            F. Supp. at 60.                                         -21-                                          21                      The  Commonwealth also  argues  that  the  district            court erred in dismissing as time-barred Massachusetts' claim            as a  creditor of  the receivership estate,  Massachusetts v.                                                         _____________            FDIC, 916 F. Supp. at 61.  The FDIA sets  statutory bar dates            ____            for claims  against FDIC-Receiver.  The  district court lacks            subject  matter  jurisdiction over  any  claim  not filed  in            accordance   with   these   requirements.     12   U.S.C.                1821(d)(13)(D).   Accordingly,  the district  court dismissed            the action.  That dismissal was correct.                      Creditors must file their claims with FDIC-Receiver            by the date  specified in  a published notice.16   This  date            must be at  least ninety  days after the  publication of  the            notice.  12 U.S.C.    1821(d)(3)(B)(i).  Claims not  filed by            the specified date are time-barred.   Id. (5)(C)(i); Simon v.                                                  ___            _____            FDIC, 48 F.3d  53, 56 (1st  Cir. 1995); Marquis v.  FDIC, 965            ____                                    _______     ____            F.2d 1148, 1152 (1st Cir. 1992).  The one statutory exception            to the claims bar is for creditors who did not receive notice            of the appointment of the receiver in time to comply with the            filing date, but  who did  file the claim  in time to  permit            payment.  12 U.S.C.   1821(d)(5)(C)(ii).                      Massachusetts did not meet  the filing deadline for            creditors.   Nor did  its  claims fall  within the  statutory            exception:   the  Commonwealth  had   prompt  notice  of  the                                            ____________________            16.  This notice is also mailed to all creditors shown on the            institution's books.  Id.   1821(d)(3)(C).                                  ___                                         -22-                                          22            appointment of receivers for  the failed bank.  Massachusetts            presents two  basic arguments  why it should  receive a  more            generous  filing period: that it  is not just  a creditor but            stands  in  the  shoes  of  depositors  as  a  fiduciary   or            conservator, and that the  FDIC in the past had  permitted it            to  do  so  and   is  now  bound  by  that   prior  position.            Massachusetts' theory appears  to be that  as a fiduciary  of            the depositors, it had no claim against FDIC-Receiver for the            pro rata value of the abandoned deposits until the expiration            of depositors' rights  to claim  the insured  value of  their            accounts.   According to the Commonwealth,  its 90-day filing            period17  for  claims  against the  receivership  estate only            began  to  run eighteen  months  after the  appointment  of a            receiver for  the failed  banks, effectively creating  a time            limit of eighteen months plus ninety days.18                      FDIC-Receiver's  position  is that  states  are not            entitled  to  the  more  lenient time  limits  applicable  to            depositors filing as creditors.  This position has the virtue            of  being  largely consistent  with the  view taken  by FDIC-                                            ____________________            17.  The statute  says that the  FDIC may specify  any period            ninety days  or longer.   In this  case, as  in most  others,            FDIC-Receiver set a 90-day filing period.            18.  The  premise   on  which  this  argument   is  based  is            incorrect:  since the enactment of the UDAA, depositors  have            the longer of 18 months or until the end of  the receivership            estate  to file insurance claims.  Pub. L. No. 103-44,   2(b)            (1993).                                         -23-                                          23            Corporate.19    Further, this  decision  is  not economically            irrational.   It protects  the federal insurance  funds to  a            certain  extent,  thereby reducing  the  cost  of the  thrift            clean-up  to the  taxpayer.  FDIC-Receiver  pays out  what is            left of  deposits pro rata  to creditors.   FDIC-Corporate is            itself a  creditor of the  receivership estate to  the extent            that  it   has  paid  insurance  and   became  subrogated  to            depositors' rights.   12  U.S.C.   1821(g).   FDIC-Receiver's            policy gives creditors a small window to assert their claims,            which benefits all timely claimants, including FDIC-Corporate            as subrogee.                      The  Commonwealth's  claim  that it  stands  in the            shoes of depositors fails.  The claim is based on the premise            that Massachusetts  can be  a depositor  under    1822(e) and            also requires that   1822(e) be read together with   1821(d),            the   statutory  provision  setting   forth  the  bar  dates.            However, nothing in the language of these provisions suggests            that they should be read together.  Moreover, for the reasons            outlined  earlier,  FDIC-Corporate's  determination that  the            Commonwealth does not stand  in the shoes of depositors  is a            reasonable one.  Because the Commonwealth cannot stand in the                                            ____________________            19.  FDIC-Receiver  has   apparently  chosen  to   treat  the            Commonwealth acting under the MAPA  as a general creditor for            the purposes  of the claims bar  statute, notwithstanding the            FDIC's  determination  that  the  MAPA does  not  render  the            Commonwealth  a depositor  for purposes  of    1822(e).   The            basis for this choice is not before us.                                         -24-                                          24            shoes  of  depositors, its  argument that  its claim  did not            arise until  the  end  of  the  18-month  period  for  filing            insurance claims with FDIC-Corporate is unavailing.20                      The argument that  Massachusetts should be  allowed            the more generous  filing period because it  had been allowed            that time period  in the past also fails.   The language of              1821(d) itself is clear.  The receiver must "promptly publish            a notice to the depository institution's creditors to present            their  claims, together with proof, to the receiver by a date            specified  in the notice which shall not be less than 90 days            after  the   publication  of   such  notice,"  12   U.S.C.               1821(d)(3)(B)(i), and  "claims filed after the date specified            in the  notice published  under paragraph (3)(B)(i)  shall be            disallowed  and  such disallowance  shall  be  final," id.                                                                      ___            1821(d)(5)(C)(i).    FDIC-Receiver's  interpretation  of  the            statute,  that  a state  must  file  its  claim  against  the            receivership within ninety days  of receiving notice from the            FDIC  or be barred  from doing so  in the future,  tracks the            plain statutory  language.   The statutory language  does not            admit  the distinction  the  Commonwealth  urges between  so-            called "deposit" creditors and  "trade" creditors.  Even were            there some  ambiguity about whether   1821(d)  should be read            in light of   1822(e), reading the two sections together does                                            ____________________            20.  While it is true that a claimant may not file  until his            claim  comes  into being,  Heno, 20  F.3d  at 1209,  here the                                       ____            claims arose, if at all, before the banks failed.                                         -25-                                          25            not  extend  the  claims  bar  date   for  creditors  of  the            receivership estate.                      Further, it is  far from clear that  there has been            any reversal  of "policy" by the agency  on this point.  Even            viewing  the evidence  in  the light  most  favorable to  the            Commonwealth, as  required in reviewing the  district court's            grant of summary  judgment, Hodgkins v. New England Tel. Co.,                                        ________    ____________________            82  F.3d 1226, 1229 (1st Cir. 1996),  there is no support for            the argument  that FDIC-Receiver  had a consistent  policy of            honoring  states' claims  filed  within eighteen  months plus            ninety days  of receiving  notice of the  receivership.   The            Commonwealth's case rests on two  pieces of evidence.  First,            FDIC-Receiver sent  a letter to the  Commonwealth, dated July            1993,   containing  language  that   Massachusetts  views  as            confirming the  alleged policy.   This interpretation  is not            supported  by  the language  of  the letter.    Second, FDIC-            Receiver  honored  an  untimely  claim  by  Massachusetts for            abandoned  deposits held  in  one of  the  banks that  failed            around  the same  time as  the other  banks involved  in this            litigation.  An isolated  settlement decision is not evidence            of a prior policy.                                          V.                      The judgment of the district court is affirmed.  No                                                            ________            costs are awarded.                                         -26-                                          26
