

                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  &amp;                                                                         

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 &amp; 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 &amp;  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 &amp; 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                                                       

&amp; 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
