                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1994

Hudson v. Chase Manhattan
Precedential or Non-Precedential:

Docket 93-5279




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Recommended Citation
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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 93-5729
                           ___________


          HUDSON UNITED BANK, as successor in interest
             to HUB National Bank, formerly known as
                   Meadowlands National Bank,
                                         Appellant

                                v.

           CHASE MANHATTAN BANK OF CONNECTICUT, N.A.;
            CONSOLIDATED ASSET RECOVERY CORPORATION;
             FEDERAL DEPOSIT INSURANCE CORPORATION,
                   in its corporate capacity;
             FEDERAL DEPOSIT INSURANCE CORPORATION,
                    as Receiver for Citytrust

         _______________________________________________

         On Appeal from the United States District Court
                  for the District of New Jersey
               (D.C. Civil Action No. 92-cv-03515)
                        ___________________


                       Argued July 20, 1994

        Before:   SCIRICA, LEWIS and SEITZ, Circuit Judges

                    (Filed December 29, 1994)


RICHARD W. MACKIEWICZ, JR., ESQUIRE (Argued)
Van Borkulo-Nuzzo & Mackiewicz
3100 Bergenline Avenue
Union City, New Jersey 07087

  Attorney for Appellant
COLLEEN B. BOMBARDIER, ESQUIRE (Argued)
LAWRENCE H. RICHMOND, ESQUIRE
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429

JAMES T. DAVIS, II, ESQUIRE
STEPHEN R. FARBER, ESQUIRE
Brach, Eichler, Rosenberg, Silver,
Bernstein, Hammer & Gladstone
101 Eisenhower Parkway
Roseland, New Jersey 07068

  Attorneys for Appellee
  Federal Deposit Insurance Corporation,
  as Receiver for Citytrust


SHERYL L. NEWMAN, ESQUIRE
McManimon & Scotland
One Gateway Center, Suite 1800
Newark, New Jersey 07102-5311

  Attorney for Appellee
  Consolidated Asset Recovery Corporation


GERALD T. FORD, ESQUIRE
SIFF ROSEN, ESQUIRE
One Gateway Center, Suite 500
Newark, New Jersey 07102-5311

  Attorneys for Appellee
  Chase Manhattan Bank of Connecticut, N.A.


                          __________________

                        OPINION OF THE COURT
                         __________________


SCIRICA, Circuit Judge.


          There   are   two   interrelated   issues   in   this   appeal.

First, whether the venue provision of the Financial Institution

Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), 12
U.S.C. § 1821(d)(6)(A) (Supp. II 1990),1 governs only actions

brought against the failed depository institution or whether it

also   applies    to   actions   against    the   institution's    receiver.

Second, whether the claims procedures established in FIRREA, 12

U.S.C. § 1821(d), cover actions against the receiver as well as

actions against the failed institution.

            This case arises out of the failure of a state bank,

Citytrust of Connecticut.        Hudson United Bank brought suit in the

United   States   District   Court   for    the   District   of   New   Jersey

against Chase Manhattan Bank of Connecticut, the Federal Deposit

Insurance   Corporation,     and    Chase's    wholly   owned     subsidiary,

Consolidated Asset Recovery Corporation, seeking a declaratory

judgment of its rights to certain funds as a result of its

participation interest in loans made by the failed bank.                  The

Federal Deposit Insurance Corporation, as receiver for the failed

bank, moved to transfer the action to the District of Connecticut

under 12 U.S.C. § 1821(d)(6)(A).           The district court granted the

motion to transfer, holding that the claims procedures applied to

actions against the receiver and that a change of venue was

required under FIRREA.       The court then certified the issue for

interlocutory appeal.        Hudson United Bank v. Chase Manhattan

Bank, NA, 832 F. Supp. 881 (D.N.J.


1
 . FIRREA, Pub. L. No. 101-73, 103 Stat. 183 (1989) (appears in
various sections of the United States Code). The current version
of § 1821(d) appears in 12 U.S.C. § 1821(d) (Supp. V 1993), but
there have been no material changes in the parts relevant to this
dispute. Unless otherwise noted, citations to 12 U.S.C. § 1821
will be to the 1990 version.
1993).     We will affirm.



                                     I.

            Plaintiff/appellant Hudson United Bank ("Hudson") is a

New Jersey corporation.2     Defendant/appellee Chase Manhattan Bank

of Connecticut, NA ("Chase"), is a national association of the

state of Connecticut, with offices in Connecticut.             Citytrust of

Connecticut ("Citytrust"), the failed bank now in receivership,

was a state bank licensed in Connecticut.          Kleinberg Electric is

a New York corporation that was a customer of Citytrust and is

now   in   bankruptcy,   allegedly   as   a   result   of   actions   of   the

defendants.      Paul and Carol Kleinberg, the guarantors on the

loan, were both New Jersey residents at the time the loan was

executed.

            In 1987, Citytrust extended to Kleinberg Electric a $1

million term loan and a $1.25 million line of credit.                 Hudson

bought a 63% interest in Kleinberg Electric's term loan as part

of a Loan Participation Agreement.        In 1991, Citytrust failed and

was placed under the control of the Federal Deposit Insurance

Corporation as receiver.      Following standard procedure, the FDIC

sought a buyer for Citytrust and found Chase, which entered into

a Purchase and Assumption Agreement with the FDIC allowing Chase

to evaluate Citytrust's assets and "put" any unwanted assets back


2
 . Hudson and its predecessor-in-interest, HUB National Bank,
formerly known as Meadowlands National Bank, are collectively
called "Hudson." All its employees with knowledge of this matter
reside in New Jersey.
to the receiver.        Chase's subsidiary, Consolidated Asset Recovery

Corporation ("CARC"), was to manage (with FDIC supervision) any

Citytrust assets that were retained or reacquired by the FDIC.

             Sometime after Citytrust's bankruptcy in August 1991

and the start of this new arrangement, Hudson ceased receiving

payments for its participation interest in the Kleinberg loan.

In   addition,     the    Kleinberg          line    of    credit   was     terminated,

apparently upon the closing of the FDIC's Purchase and Assumption

Agreement with Chase.          Hudson, 832 F. Supp. at 883.                 Two months

later, Chase "put" the Kleinberg loans back to the receiver, to

be managed by CARC.

             Hudson claimed it had not been notified of Citytrust's

bankruptcy   and     learned      of    it    only    in   November    1991    when   it

inquired about the discontinued loan payments.                        In January 1992

CARC accelerated the loans, allegedly causing Kleinberg to file

for bankruptcy.          Even after filing for bankruptcy, Kleinberg

continued to make payments to CARC on the Citytrust loans, but

CARC allegedly failed to remit to Hudson its full share of those

payments.    By early 1992 it appeared that Hudson was losing money

on the Kleinberg loan.            In March 1992, however, Chase deposited

$476,176.80 into an account of Hudson's at Chase, and Hudson

withdrew that money as payment in full of the loan participation.

Chase then decided it had deposited the money by mistake and

asked for it back.           Hudson responded by seeking a declaratory

judgment    of    its    rights    to    the    funds,      punitive      damages,    and

litigation       expenses.        Hudson       alleged       breach    of     the    Loan

Participation Agreement, breach of the duty of good faith, breach
of    fiduciary        duty,     and   fraudulent           concealment.           Chase

counterclaimed for the return of the money.

            After filing its action, Hudson asked the FDIC receiver

whether    administrative        review     of   its   claims      was     a   necessary

prerequisite to bringing suit.              The FDIC forwarded a claim notice

to Hudson, which Hudson filed.                   The FDIC then disallowed the

claim   and      moved    to    transfer     the    case     to    the     District    of

Connecticut under 28 U.S.C. § 1406(a) (1988)3 and 12 U.S.C. §

1821(d)(6)(A).         The FDIC contended that New Jersey was the wrong

venue because

12 U.S.C. § 1821(d)(6)(A) specifies that a claimant can only

bring     suit    in     the    district     where     the        failed       depository

institution      had     its    principal    place     of    business       or    in   the

District of Columbia.             Because Citytrust's principal place of

business was in Connecticut, the FDIC asserted that the case

should be transferred there.           Hudson opposed transfer, contending

§    1821(d)(6)(A)       only    refers     to     claims     against      the    failed

depository institution, not to claims based on actions taken by

the FDIC after the bank failed, which are actually against the

receiver, not the institution.               The district court granted the



3
.    Section 1406(a) provides:

            The district court of a district in which is
            filed a case laying venue in the wrong
            division or district shall dismiss, or if it
            be in the interest of justice, transfer such
            case to any district or division in which it
            could have been brought.
FDIC's   motion    to    transfer   and    then   certified   the    following

question for interlocutory appeal:4
          Does the venue provision in [FIRREA],
          12 U.S.C. § 1821(d)(6) apply to an action
          which is brought against the receiver for
          wrongs allegedly committed by the receiver
          rather than the failed institution?




                                     II.

           We     have   plenary    review   over   the   district    court's

conclusions of law.         Tudor Dev. Group, Inc. v. United States

Fidelity & Guar. Co., 968 F.2d 357, 359 (3d Cir. 1992); Gregoire

v. Centennial Sch. Dist., 907 F.2d 1366, 1370 (3d Cir.), cert.

denied, 498 U.S. 899 (1990).        We are not limited to the certified

question, but may rule on other issues relevant to the appeal.



4
 . We must decide whether the district court had jurisdiction to
certify the question after it had ordered the transfer. The
general rule is that the transferor court loses jurisdiction when
the files in a case are physically transferred to the transferee
court. See, e.g., Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d
247, 250 (4th Cir. 1991); Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1516-17 (10th Cir. 1991); Robbins
v. Pocket Beverage Co., 779 F.2d 351, 355 (7th Cir. 1985).

          In this case, the district court granted the motion to
transfer on September 17, 1993. On September 24, 1993, Hudson
served notice of a motion to certify the issue to this Court, and
on October 12, 1993, the district court granted a stay of the
transfer until it decided the motion to certify. Nothing in the
record indicates the district court had completed (or even begun)
the process of physically transferring the files. We assume the
district court delayed physical transfer of the files to allow
the parties time to file a motion for certification. Cf.
Chrysler Credit, 928 F.2d at 1517 & n.7 (observing this type of
delay is the "preferred approach"). The district court had
jurisdiction to certify the question we consider here.
Johnson v. Alldredge, 488 F.2d 820, 823 (3d Cir. 1973), cert.

denied, 419 U.S. 882 (1974).

           The district court granted the motion to transfer venue

under FIRREA, 12 U.S.C. § 1821(d)(6)(A).       The provision on venue

is    entitled    "Provision    for   agency   review    or   judicial

determination of claims."      12 U.S.C. § 1821(d)(6).   Subparagraph

(A) provides:
          In general

           Before the end of the 60-day period beginning
           on the earlier of--
                (i) the end of the period described
                in paragraph (5)(A)(i) with respect
                to any claim against a depository
                institution    for     which    the
                Corporation is receiver; or
                (ii) the date of any notice of
                disallowance of such claim pursuant
                to paragraph (5)(A)(i),5

           the   claimant may   request  administrative
           review of the claim . . . or file suit on
           such claim (or continue an action commenced
           before the appointment of the receiver) in
           the district or territorial court of the
           United States for the district within which
5
.    Section 1821(d)(5)(A)(i) provides:

           (5) Procedures for determination of claims

                 (A) Determination period

                (i) In general
                Before the end of the 180-day period
           beginning on the date any claim against a
           depository institution is filed with the
           Corporation as receiver, the Corporation
           shall determine whether to allow or disallow
           the claim and shall notify the claimant of
           any determination with respect to such claim.

12 U.S.C. § 1821(d)(5)(A)(i).
             the depository institution's principal place
             of business is located or the United States
             District Court for the District of Columbia
             (and such court shall have jurisdiction to
             hear such claim).


12 U.S.C. § 1821(d)(6)(A) (footnote supplied).

             As we have noted, Hudson contends this subparagraph,

with   its    venue   provision,   applies     only   to     claims     against   a

depository     institution;    that    is,    it   applies    only     to   claims

against Citytrust and not to claims against the FDIC.                    If true,

the FDIC as receiver cannot request a change of venue under

FIRREA.      In addition, Hudson maintains the entire subsection (d)

is inapplicable to breach of contract actions like the present

dispute.         Finally,     Hudson      asserts     that      under       certain

circumstances application of the provisions in subsection (d)

would create an unconstitutional result.

                                       A.

             Hudson   maintains    that      claims   against    the     receiver

cannot be considered under § 1821(d)(6)(A),6 but must be analyzed

6
 . The applicability of the venue provision is the principal
issue in this case, so it is helpful to locate the provision
within the statute and to describe the scope of the section in
which it occurs. Section 1821, entitled "Insurance Funds,"
covers all aspects of the FDIC's administration of insurance
funds. The two subsections at issue are: subsection (d), "Powers
and duties of Corporation as conservator or receiver" and
subsection (e), "Provisions relating to contracts entered into
before appointment of conservator or receiver." 12 U.S.C. §
1821(d), (e).

     Subsection (d) relates to the powers and duties of the
Corporation ("The Corporation" refers in this context to the
FDIC), and is divided into 19 paragraphs. Those at issue are: ¶
(3), "Authority of the receiver to determine claims" (giving the
notice requirements for claimants, including timing); ¶ (5),
"Procedures for determination of claims" (setting out the period
under § 1821(d)(5)(C) ("Disallowance of claims filed after end of

filing   period")7   or    under   §   1821(d)(6)(B)   ("Statute   of

(..continued)
during which claims will be decided); ¶ (6), "Provision for
agency review or judicial determination of claims" (establishing
review procedures, including the venue provision); and ¶ (13)
"Additional rights and duties" (including a jurisdictional
limitation on judicial review). 12 U.S.C. § 1821(d)(3), (5),
(6), (13). Subsection (e) deals with contracts made before
appointment of the receiver. Hudson discusses one of the 13
paragraphs in § 1821(e), ¶ (2), "Timing of repudiation."
Subsection (e), unlike (d), sets out no specific review
procedures for claimants to follow. 12 U.S.C. § 1821(e).
7
.   Section 1821(d)(5)(C) provides:

          (5) Procedures for determination of claims

               . . . .

               (C) Disallowance of claims filed after end of
               filing period

                     (i)  In general
                          Except as provided in clause (ii),
                     claims filed after the date specified in
                     the notice published under paragraph
                     (3)(B)(i) shall be disallowed and such
                     disallowance shall be final.

                     (ii) Certain exceptions
                          Clause (i) shall not apply with
                     respect to any claim filed by any
                     claimant after the date specified in the
                     notice published under paragraph
                     (3)(B)(i) and such claim may be
                     considered by the receiver if--
                                  (I) the claimant did not
                          receive notice of the appointment
                          of the receiver in time to file
                          such claim before such date; and
                                  (II) such claim is filed in
                          time to permit payment of such
                          claim.

12 U.S.C. § 1821(d)(5)(C).
Limitations").8       Hudson   points   out   that   §   1821(d)(13)(D)9


8
.   Section 1821(d)(6)(B) provides:

          (6) Provision for agency review or judicial
          determination of claims

                  . . . .

                  (B) Statute of limitations
                     If any claimant fails to--
                       (i) request administrative
                  review of any claim in accordance
                  with subparagraph (A) or (B) of
                  paragraph (7); or
                       (ii) file suit on such claim
                  (or continue an action commenced
                  before the appointment of the
                  receiver),

          before the end of the 60-day period described
          in subparagraph (A), the claim shall be
          deemed to be disallowed (other than any
          portion of such claim which was allowed by
          the receiver) as of the end of such period,
          such disallowance shall be final, and the
          claimant shall have no further rights or
          remedies with respect to such claim.

Id. § 1821(d)(6)(B).
9
.   Section 1821(d)(13)(D) provides:

          (13) Additional rights and duties

                  . . . .

                  (D) Limitation on judicial review
                       Except as otherwise provided in this
                  subsection, no court shall have jurisdiction
                  over--
                            (i) any claim or action for payment
                       from, or any action seeking a
                       determination of rights with respect to,
                       the assets of any depository institution
                       for which the Corporation has been
                       appointed receiver, including assets
specifically provides for claims against the receiver while §

1821(d)(6)(A),     which      contains    the    venue   provision,     does     not.

From    this     Hudson      concludes    that     the    venue      provision    (§

1821(d)(6)(A)) if read literally applies only to claims against

the depository institution, not to claims against the receiver.

The FDIC disagrees, contending Congress intended § 1821(d)(6)(A)

to    include   claims    against   the    receiver.       The    district     court

agreed with the FDIC.

            The district court acknowledged that Hudson's argument

had some force if § 1821(d)(6)(A) were read without reference to

the related parts of FIRREA that establish claims procedures.

But the district court rejected Hudson's interpretation because

it found that applying the claims procedures' venue provision to

all    claims   (including      claims    against   the    receiver)     was     more

consistent      with   the    statutory    structure     and   the    purposes    of

FIRREA.    Following the approach we employed in Rosa v. Resolution

Trust Corp., 938 F.2d 383 (3d Cir.), cert. denied, 112 S. Ct. 582

(1991),10 the district court looked to the other sections of

(..continued)
                          which the Corporation may acquire from
                          itself as such receiver; or
                               (ii) any claim relating to any act
                          or omission of such institution or the
                          Corporation as receiver.

Id. § 1821(d)(13)(D).
10
 . Hudson reminds us that in Rosa we construed § 1821(d)(13)(D)
of FIRREA literally, holding that it did not apply to entities
unless they were explicitly included. Rosa, 938 F.2d at 393-94.
In Rosa, we held 12 U.S.C. § 1821(d)(13)(D) parts (i) and (ii)
applied only to the claims specified. See supra note 9 for the
text of this subparagraph. Thus, with respect to this two-part
subsection, we held (i) applied only to claims against failed
FIRREA   that   detail   the   claims   process   for   guidance   in

understanding the scope of the venue provision.11


(..continued)
institutions while (ii) applied to claims against failed
institutions specified in (i) as well as to claims against the
receiver of such institutions. Rosa, 938 F.2d at 393-94.

          Hudson argues that application of Rosa's literal
approach to § 1821(d)(6)(A) is proper and leads to the conclusion
that § 1821(d)(6)(A) excludes claims against receivers since they
are not mentioned. But § 1821(d)(13)(D), which we interpreted in
Rosa, differs from the one under consideration in that it
comprises two parts, one of which addresses claims relating to
the institution and the other which pertains to claims relating
to either the depository institution or the receiver.

          This structure made us confident in Rosa that the
failure to mention claims against the receiver in the first part
was not just careless drafting. Where Congress took care in part
(ii) to include claims relating to the receiver as well as the
depository institution, we could assume that Congress intended in
part (i) to include only claims against the institution and to
exclude those against the receiver. Section 1821(d)(6)(A),
however, contains no analogous divisions, and thus the import of
the language is not as clear as it was for us in Rosa. Hudson's
argument that we should read § 1821(d)(6)(A) literally, as we did
§ 1821(d)(13)(D), fails because of the difference in structure of
the two subparagraphs.
11
 . The district court properly followed the "cardinal rule that
a statute is to be read as a whole, . . . since the meaning of
statutory language, plain or not, depends on context." King v.
St. Vincent's Hosp., 112 S. Ct. 570, 574 (1991) (citation
omitted). As the Supreme Court has stated: "Statutory
construction . . . is a holistic endeavor. A provision that may
seem ambiguous in isolation is often clarified by the remainder
of the statutory scheme . . . because only one of the permissible
meanings produces a substantive effect that is compatible with
the rest of the law . . . ." United Sav. Ass'n v. Timbers of
Inwood Forest, 484 U.S. 365, 371 (1988) (citations omitted); see
also Smith v. United States, 113 S. Ct. 2050, 2056-57 (1993)
(construing scope of statutory language by reading various
provisions together); Trathen v. United States, 198 F.2d 757, 760
(3d Cir. 1952) (observing "[t]he meaning of any given word in a
statute is properly determined by reading the language in
question together with other sections of the act").
                  The district court first considered § 1821(d)(5)(A),12

which       outlines      the    claims       procedures       of       FIRREA.         See    Praxis

Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 62-

63    (3d     Cir.       1991)    (reviewing          FIRREA's          administrative         claims

procedures).             Noting that the venue provision (§ 1821(d)(6)(A))

defines the claims to which it applies by express reference to §

1821(d)(5)(A), the district court concluded that § 1821(d)(5)(A)

and     §     1821(d)(6)(A)            applied        to     the        same     claims.        Both

subparagraphs            apply    by    their        terms    to     "any       claim    against      a

depository institution" for which the FDIC is the receiver.

                  Having linked § 1821(d)(6)(A) to § 1821(d)(5)(A), the

district          court    then     considered             whether       claims       against    the

receiver          were    covered      under     §    1821(d)(5),            because     if    so,    §

1821(d)(6)(A) would have to cover them as well.                                       The district

court       first     observed      that      we     have     routinely          assumed      that    §

1821(d)(5) applies to claims against the receiver.                                    See Rosa, 938

F.2d at 395-96; Althouse v. Resolution Trust Corp., 969 F.2d

1544, 1545-46 (3d Cir. 1992); Praxis Properties, 947 F.2d at 62-

64.         The    district      court     then       looked       to    §     1821(d)(13)(D)        to

explain why claims against the receiver had to be within the

scope       of    §   1821(d)(5)        and    therefore           within       the    scope    of    §

1821(d)(6)(A).




12
 . The relevant part of 12 U.S.C. § 1821(d)(5)(A) appears supra
note 5.
             Section 1821(d)(13)(D)13 bars judicial review except as

otherwise provided in § 1821(d).               The jurisdictional bar of §

1821(d)(13)(D) extends explicitly to claims against the receiver

as well as to those against the depository institution.                      Thus,

unless   §   1821(d)(5)      allows       administrative    review   of     claims

against the receiver, there would be no mechanism to review those

claims--they       would   be      barred    from    judicial    review      by     §

1821(d)(13)(D)      and    there    would     be    no   provision   for    review

elsewhere.    The district court reasoned that if the paragraphs on

administrative and judicial review of claims (§ 1821(d)(6)(A) and

§ 1821(d)(5)(A)) did not apply to claims against the receiver,

then § 1821(d)(13)(D) would compel a complete bar of review of

claims against the receiver because no grant of jurisdiction

exists elsewhere in § 1821(d).              As the district court reasoned:

"Logic dictates that the claims barred by paragraph (13)(D) must

coincide with those that may be filed under the administrative

procedures    of    paragraph      (5).     Otherwise,     paragraphs      (5)    and

(13)(D) would bar relief in the district court without providing

relief elsewhere, and FIRREA would become a source of immunity

for the Receiver."         Hudson United Bank v. Chase Manhattan Bank,

NA, 832 F. Supp. 881, 886 (D.N.J. 1993).                    The district court

found that Congress did not intend FIRREA's claims process to

immunize the receiver, but rather wanted to require exhaustion of




13
 .   For the text of § 1821(d)(13)(D), see supra note 9.
the receivership claims process before going to court.14   Id. at

885-86.

          On appeal, Hudson tries to answer this argument by

finding implicit jurisdiction for claims against the receiver in

§ 1821(d)(5)(C) and (d)(6)(B) which refer to "any claims."15   But

neither section addresses claims against the receiver explicitly,

and Hudson's attempt to find a grant of jurisdiction in them is

strained.16   We find the district court's reading of § 1821(d)

14
 . As this is a matter of statutory construction, consideration
of legislative history would be appropriate. But neither party
has cited material relevant to this venue dispute, and our own
research has failed to uncover any.
15
 . For the text of these paragraphs, see supra notes 7 and 8,
respectively.
16
 . Hudson also claims Congress intended to exclude claims
against the receiver from the ambit of § 1821(d)(6)(A) by
establishing two different procedures for processing claims, one
for claims against the failed institutions (treated in §
1821(d)(6)(A) and (d)(5)(A)) and another for claims against the
receiver (treated in § 1821(d)(6)(B) and (d)(5)(C)), but without
making that distinction explicit in the statute.

          A look at the titles of the various parts of the
statute supports the district court's view that Congress intended
to establish a single set of procedures in § 1821(d). See, e.g.,
INS v. National Ctr. for Immigrants' Rights, Inc., 112 S. Ct.
551, 556 (1991) (noting title of statute or section can aid
interpretation of statute's meaning); House v. Commissioner, 453
F.2d 982, 987 (5th Cir. 1972) (observing the propriety of using
section headings to determine a statute's meaning). The general
title of § 1821(d)(6) is "Provision for agency review or judicial
determination of claims," and the title of § 1821(d)(6)(A), which
contains the venue provision, is "In general." This leads to the
natural inference that procedures contained in the "In general"
part apply to all cases of agency review or judicial
determination of claims absent explicit exceptions. 12 U.S.C. §
1821(d)(6)(A).

          No such inference suggests a separate set of procedures
in either § 1821(d)(6)(B) entitled "Statute of limitations" or §
more convincing and consistent with congressional purpose as well

as with our opinion in Rosa.

            It    is   true   that    FIRREA   is   awkwardly   written   and

difficult to interpret.17        But as the district court noted, the

purpose of § 1821(d)(5)(A) and (d)(13)(D) was to force plaintiffs

with claims against failed depository institutions to file their

claims    under   FIRREA's    administrative    claims   procedures   before

filing them in federal court.          H.R. Rep. No. 54(I), 101st Cong.,

1st Sess. 291, 418-19 (1989), reprinted in 1989 U.S.C.C.A.N. 86,

214-15.     The purpose was not to immunize certain claims from

review.    The district court also found application of the venue

provision to claims against the receiver consistent with the

claims    process's    purpose   of    promoting    efficiency.    Treating

claims against the receiver differently from claims against the

institution would foster inefficiency by forcing the FDIC to

"defend actions at various locations throughout the country, with

the attendant disruption of the Bank's records and personnel,

[and] the defendant's task would become further complicated."

Hudson, 832 F. Supp. at 887 (citation omitted).

(..continued)
1821(d)(5)(C) "Disallowance of claims filed after end of filing
period." Further, there is no mention there of separate
procedures for claims against the receiver. We do not believe
Congress intended to establish separate procedures in such an
indirect and disjointed manner. 12 U.S.C. § 1821(d)(6)(B),
(d)(5)(C).
17
 . As one court lamented when faced with the task of
interpreting § 1821(d): "FIRREA's text comprises an almost
impenetrable thicket . . . . [C]onfusion over its proper
interpretation is not only unsurprising--it is inevitable."
Marquis v. FDIC, 965 F.2d 1148, 1151 (1st Cir. 1992).
               Accordingly, we hold that the venue provision in 12

U.S.C. § 1821(d)(6)(A) applies to claims against the receiver.

This    holding      answers    the    question         we    expressly        left   open    in

National Union Fire Insurance Co. v. City Savings, F.S.B., 28

F.3d    376,    387    n.12     (3d    Cir.    1994),         as    to   the    reach    of    §

1821(d)(13)(D).          By     deciding      that      the        administrative       claims

procedures and the jurisdictional bar have concurrent scope, we

avoid    the        possibility       raised       in        National       Union      that    §

1821(d)(13)(D) could become "an independent and outright bar of

jurisdiction" rather than a mere exhaustion requirement if §

1821(d)(13)(D) were to have broader reach than the administrative

claims procedures.        National Union, 28 F.3d at 387 n.12.

                                              B.

               Hudson's second statutory construction argument is that

because this action involves the receiver's repudiation of a

contract, it falls within § 1821(e) rather than § 1821(d).                                    We

will consider this issue even though Hudson did not present it to

the district court.             Merican, Inc. v. Caterpillar Tractor Co.,

713 F.2d 958, 962 n.7 (3d Cir. 1983), cert. denied, 465 U.S. 1024

(1984) (on interlocutory appeal, court can consider all grounds

which might require reversal).

               In   arguing     this    point      in    its       brief,    Hudson     relied

almost entirely on Heno v. FDIC, 996 F.2d 429 (1st Cir. 1993)
("Heno   I"),       withdrawn     and superseded             by    20    F.3d   1204    (1994)

("Heno II").         By the time of oral argument, the Court of Appeals

for the First Circuit had withdrawn Heno I and replaced it with
Heno II.     At oral argument, counsel for Hudson announced that it

still wished to rely on the reasoning of Heno I.

           Heno had an executory contract with a bank that failed.

Although it had notice of the FDIC's appointment as receiver

before the expiration of the time for filing claims under §

1821(d), it had no claim until after the bar date because the

FDIC had not yet repudiated the contract and so it remained

executory.     Therefore, Heno had no claim to file and no claim

subject to administrative review.            Absent prior administrative

review, the court lacked jurisdiction to hear Heno's claim.                12

U.S.C. § 1821(d)(13)(D).       Heno had sent the FDIC two post-bar

date letters requesting that the FDIC inform Heno of its position

on the contract.    Under § 1821(d), however, the letters could not

provide the court with jurisdiction because Heno had not filed a

claim before the bar date.          In Heno I, the court of appeals

reasoned   Congress   did   not     intend   the   administrative      review

procedures    established   under    §   1821(d)   to   apply   to   preclude

judicial review of post-receivership claims arising after the 90-

day filing period.      12 U.S.C. § 1821(d)(3)(B).              Instead, the

"reasonable period" time bar of 12 U.S.C. § 1821(e)(2)18 would

18
 .   Section 1821(e)(2) provides:

           (e) Provisions relating to contracts entered
           into before appointment of conservator or
           receiver

                 . . . .

                 (2) Timing of repudiation
                      The conservator or receiver . . . shall
                 determine whether or not to exercise the
govern Heno's claim.            Heno II, 20 F.3d at 1208 (discussing Heno

I).

              The court of appeals withdrew Heno I after realizing

that Heno's claim was in fact not barred under § 1821(d) once the

FDIC's     internal     agency    manual   procedures         for    processing     such

post-bar date claims were properly applied.                         The FDIC, in its

petition for rehearing and then at reargument, represented that

if    it   had   considered       Heno's   claims      as    contract      repudiation

claims,     Heno's     letters    would    have   been       sufficient     under      its

internal procedures to avoid the time bar.                       Id.      This implied

that    the   FDIC    would     allow   administrative         review     and    thereby

remove the bar to judicial review.                    Under those circumstances,

the court did not find it necessary to treat Heno's contract

claim      against    the   receiver    under     §    1821(e)      and   went    on   to

consider      the    parties'    arguments    under      §   1821(d).       Id.        The

internal agency manual procedures persuaded the court of appeals

that resort to the application of § 1821(e) in breach of contract

actions against the receiver was not routinely necessary to avoid

an irrational result.             See id. at 1210-14 (setting forth the

internal manual procedures in an appendix to the opinion).

              In the present case, § 1821(d) will not apply to bar

judicial review because of untimely filing for administrative

review.          Hudson's       claim   has     already       been      subjected       to
(..continued)
                     rights of repudiation under this subsection
                     within a reasonable period following . . .
                     appointment.

12 U.S.C. § 1821(e)(2).
administrative review and the district court had jurisdiction

over it.    Nevertheless, Hudson argues that § 1821(d) is generally

inappropriate for breach of contract actions, relying on the

reasoning of Heno I.       Insofar as the rationale of Heno I depended

on the agency's refusal to review Heno's claim, Hudson's argument

must fail as no such agency refusal occurred here.                 If Hudson's

argument is based on the notion that Heno I made the more general

statement    that   contract     claims    against     the   receiver   are   not

subject to administrative review, it is inconsistent with Heno II

and also with our opinion in Rosa, in which we held that all

claims for monetary relief arising out of the receiver's alleged

breach of a contract were subject to the administrative review

procedures of § 1821(d).       Rosa, 938 F.2d at 392-93.          Furthermore,

we   find   unconvincing   the    other    case   on   which   Hudson relies,

Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269,

1275 (10th Cir.), cert. denied, 115 S. Ct. 317 (1994), which

explicitly differs from Rosa on this point.

                                      C.

            Finally, Hudson contends the application of the time

constraints imposed by 12 U.S.C. § 1821(d)(6)(A), combined with

the time bar contained in § 1821(d)(3)(B) (which sets the cut-off

date for claims submitted to administrative review), could in

some cases raise significant constitutional problems of improper

delegation of authority, denial of due process, and taking under

the Fifth Amendment.        Hudson maintains this could result where

the receiver causes injury to a party, giving rise to a cause of

action after the date has passed by which creditors were to bring
their claims under 12 U.S.C. § 1821(d)(3)(B).19     The receiver,

which has discretion to hear some late claims under 12 U.S.C. §

1821(d)(5)(C), could exercise its discretion against hearing the

claim.20   This failure to go through the administrative review


19
 .   Section 1821(d)(3)(B) provides:

           (3) Authority of receiver to determine claims

                . . . .

                (B) Notice requirements
                The receiver, in any case involving the
           liquidation or winding up of the affairs of a
           closed depository institution, shall--
                     (i) 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 be not less than
                90 days after publication of such
                notice; and
                     (ii) republish such notice
                approximately 1 month and 2 months,
                respectively after the publication
                under clause (i).

Because the receiver must publish notice "promptly," the bar date
will fall approximately 6 months after it is appointed. Claims
filed after the bar date are disallowed, with certain exceptions,
under § 1821(d)(5)(C).
20
 . The text of § 1821(d)(5)(C) appears supra note 7. In fact,
the discretion of the receiver to hear late claims is limited,
and would not apply to many of the post-closing claims against
the receiver that Hudson describes. Claims that are filed late
where the claimant had timely notice of the appointment of the
receiver but the claim did not arise before the end of the cut-
off date would not qualify as exceptions under
§ 1821(d)(5)(C)(ii). That was the case in Heno v. FDIC, 20 F.3d
1204, 1207-08 (1st Cir. 1994), in which the complainant
concededly had actual notice of the FDIC's appointment but held
no claim to assert until after the cut-off date.
procedure would in turn create a bar to judicial review under §

1821(d)(13)(D).21        Rosa v. Resolution Trust Corp., 938 F.2d 383,

391-92   (3d    Cir.),    cert.   denied,   112    S.   Ct.    582   (1991).     A

plaintiff whose claim the receiver had declined to review as

untimely would therefore be left with no remedy for the alleged

wrong.

           We    recently     recognized    that    due   process      might    be

violated where a party that had no reasonable opportunity to

submit a claim for administrative review had its claim barred

from judicial review.        National Union Fire Ins. Co. v. City Sav.,

F.S.B., 28 F.3d 376, 389-90 n.16 (3d Cir. 1994).                  Hudson argues

that to prevent the possibility of this unconstitutional result

each claim arising from the acts or omissions of the receiver

must proceed not under 12 U.S.C. § 1821 (d)(6)(A), but instead

under § 1821(d)(5)(C), which treats disallowance of claims filed

after the end of the filing period.               The time constraint in §

1821(d)(6)(A)     for    filing   for   administrative        review   of   claims

against the receiver would then not apply to the claims, nor

would the venue provision.          Hudson would also have us read the

permissive language of § 1821(d)(5)(C)22 as mandatory.                  See FDIC
v. diStefano, 839 F. Supp. 110, 118 (D.R.I. 1993) (reading the

"may" in § 1821(d)(5)(C) as "must"); Scott v. Resolution Trust

Corp. (In re Scott), 157 B.R. 297, 318 (Bankr. W.D. Tex. 1993)


21
 .   For the text of this subparagraph, see supra note 9.
22
 . That language is "and such claim may be considered by the
receiver." 12 U.S.C. § 1821(d)(5)(C).
(same), withdrawn, 162 B.R. 1004 (Bankr. W.D. Tex. 1994).                            This,

Hudson states, would relieve the due process concerns raised by

the FDIC having discretion not to hear certain claims, which, if

exercised, could operate to bar jurisdiction in the courts.

             Hudson reads the due process requirements too broadly.

We   did    not    suggest    in    National    Union        or   elsewhere      that    due

process mandates two separate claims procedures.                               Rather, we

stated      that     where    the    jurisdictional           bar    contained      in     §

1821(d)(13)(D) could not constitutionally be applied, a court

would have jurisdiction over the claim.                      National Union, 28 F.3d

at 389-90 n.16, 393 n.22.             Where the statute does not otherwise

direct      or     suggest    the    recognition        of     two       separate   claims

procedures, we decline to apply the jurisdictional bar where it

would      yield    an   unconstitutional        result.             A    single    claims

procedure is more consistent with our decision in Rosa, which

held that claims against the receiver, as well as claims against

the failed institution, were subject to the "statutory exhaustion

requirement"        of   administrative        review    before          the   courts    had

jurisdiction over them.              938 F.2d at 392-93.                  Thus, it would

appear there is no constitutional infirmity.                             But we need not

decide that here.            The possibility of a jurisdictional bar does

not arise under the facts of this case because the administrative

review process was completed.



                                         III.

             For the reasons set forth, the judgment of the district

court will be affirmed.
