
USCA1 Opinion

	




          March 19, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                              _________________________          No. 92-2104                           EDWARD McANDREWS, AS TRUSTEE OF                                IYANOUGH REALTY TRUST,                                Plaintiff, Appellant,                                          v.                      FLEET BANK OF MASSACHUSETTS, N.A., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Edward  R.  Wiest, with  whom Edward  D. Tarlow  and Tarlow,               _________________             _________________      _______          Breed, Hart, Murphy & Rodgers, P.C. were on brief, for appellant.          ___________________________________               Leonard  G. Learner and Hutchins, Wheeler & Dittmar, P.C. on               ___________________     _________________________________          brief for appellee Fleet Bank of Massachusetts, N.A.               S.  Alyssa  Roberts,  Attorney,  with whom  Ann  S.  DuRoss,               ___________________                         _______________          Assistant General  Counsel, and Richard J.  Osterman, Jr., Senior                                          _________________________          Counsel, were  on brief,  for appellee Federal  Deposit Insurance          Corporation.                              _________________________                                    March 19, 1993                              _________________________                    SELYA, Circuit Judge.  A property owner appeals from  a                    SELYA, Circuit Judge.                           _____________          ruling that keeps intact a  bank's lease notwithstanding both the          bank's failure  and a clause  in the lease  ostensibly permitting          the  landlord to opt out  upon the tenant's  insolvency.  Because          enforcing  the  lease  despite   the  termination-upon-insolvency          clause comports with the provisions of the Financial Institutions          Reform, Recovery, and Enforcement  Act of 1989 (FIRREA),  Pub. L.          No. 101-73,  103  Stat. 183  (codified  as amended  in  scattered          sections of 12 U.S.C.),  and because such enforcement constitutes          neither a  retroactive application  of the newly  enacted statute          nor an unconstitutional taking of appellant's property, we affirm          the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    In  1986, plaintiff-appellant Edward  McAndrews, in his          capacity as  trustee of the Iyanough Realty Trust, purchased real          estate situated at 375 Iyanough Road, Hyannis, Massachusetts (the          Hyannis property).  At the time, the premises were under lease to          Merchants Bank  & Trust Company of Cape Cod.  The lease, executed          in  1969,  provided for  a 20-year  term  with a  20-year renewal          option.  After appellant acquired  the Hyannis property, the Bank          of New  England (BNE) merged  with Merchants Bank  and seasonably          exercised the option.                    Subsequently, Congress enacted FIRREA, thus providing a          mechanism to deal with  financially distressed banks in a  manner          that  preserves  their  going  concern  value  and  enhances  the          prospects  of  orderly  administration  during   troubled  times.                                          2          FIRREA includes          a provision  allowing the  Federal Deposit  Insurance Corporation          (FDIC), as receiver, to enforce contracts previously entered into          by failed banks  notwithstanding contractual provisions  designed          to  guard  against exactly  that eventuality.    See 12  U.S.C.                                                             ___          1821(e)(12)(A) (Supp.  III 1991).1   This section  has particular          pertinence  in  the present  situation  since  the Hyannis  lease          contains a  termination-upon-insolvency  clause (which  we  shall          call  an ipso facto clause) permitting the lessor to abrogate the                   ____ _____          lease if any regulatory  authority, such as the FDIC,  takes over          the tenant bank.2                    FIRREA  was effective  on  the date  of its  enactment,          viz.,  August 9, 1989.  See Demars  v. First Serv. Bank for Sav.,          ____                    ___ ______     _________________________                                        ____________________               1The statute provides  in relevant part  that the FDIC,  qua                                                                        ___          receiver,                    may enforce  any contract . .  . entered into                    by the depository institution notwithstanding                    any  provision of the  contract providing for                    termination,   default,   acceleration,    or                    exercise of rights upon, or solely  by reason                    of,  insolvency  or  the  appointment   of  a                    conservator or receiver.          12 U.S.C.   1821(e)(12)(A).               2The ipso facto  clause is  embodied in section  6.1 of  the                    ____ _____          lease.  It states:                    If . . .  the Lessee is closed or  taken over                    by the banking authority of  the Commonwealth                    of  Massachusetts  or other  bank supervisory                    authority,  .  . .  the  Lessor  lawfully may                    immediately or  at  any time  thereafter  and                    without  demand or  notice,  enter  upon  the                    premises or  any part thereof in  the name of                    the whole, and  repossess the same . .  . and                    expel the Lessee . . . .                                          3          907  F.2d  1237,  1238-39  (1st  Cir.  1990).    Seventeen months          thereafter,  BNE failed.  The  FDIC was appointed  as receiver on          January  6, 1991.   It organized a so-called  bridge bank, see 12                                                                     ___          U.S.C.   1821(n)(1)(A) (Supp. III 1991), named it New Bank of New          England  (NBNE),  and  assigned  the leasehold  interest  in  the          Hyannis property to it.  See 12 U.S.C.   1821(n)(3)(A) (Supp. III                                   ___          1991).  When appellant, relying on the lease's terms, served NBNE          with a notice to quit, the bank stood fast, asserting that FIRREA          rendered the ipso facto clause unenforceable.                       ____ _____                    Appellant  then  sought  a  declaration  of  rights  in          federal  district court, naming NBNE and FDIC as defendants.3  He          argued  that section  1821(e)(12)(A)  should only  be applied  to          leases executed  after FIRREA's  effective date.   In appellant's          view, applying the statute to  a preexisting lease containing  an          ipso  facto clause  effectively nullifies  the clause,  therefore          ____  _____          constituting an improper retroactive  application of the statute;          and, moreover, effects a taking without compensation in violation          of the Fifth Amendment.                    The  district court  rejected these  twin asseverations          and granted summary judgment in defendants' favor.  See McAndrews                                                              ___ _________          v.  New Bank  of New  England, 796  F. Supp.  613, 616  (D. Mass.              _________________________          1992).  McAndrews appeals.          II.  RETROACTIVE APPLICATION          II.  RETROACTIVE APPLICATION                    It  is a  settled  rule that  courts  should not  apply                                        ____________________               3In July 1991, Fleet  Bank of Massachusetts purchased NBNE's          leasehold interest in  the Hyannis property.  Fleet  has replaced          NBNE as a defendant and appellee.                                          4          statutes retroactively  when doing so would  significantly impair          existing  substantive  rights  and,  thus,  disappoint legitimate          expectations.   See, e.g., Bradley v. Richmond Sch. Bd., 416 U.S.                          ___  ____  _______    _________________          696,  711 (1974); FDIC v.  Longley I Realty  Trust, ___ F.2d ___,                            ____     _______________________          ___ (1st Cir.  1993) [No. 92-1770, slip op. at  5]; C.E.K. Indus.                                                              _____________          Mechanical  Contractors, Inc. v. NLRB, 921 F.2d 350, 358 n.7 (1st          _____________________________    ____          Cir. 1990); cf.  American Trucking  Ass'ns v. Smith,  110 S.  Ct.                      ___  _________________________    _____          2323, 2338 (1990) (explaining retroactivity principles in respect          to judge-made law).   In the instant case, appellant  posits that          applying  section  1821(e)(12)(A) to  trump a  preexisting escape          clause  must be  considered a  retroactive application  of FIRREA          and, as such, improper.  We do not agree.                    The determination of whether a statute's application in          a particular situation is prospective or retroactive depends upon          whether  the  conduct  that   allegedly  triggers  the  statute's          application  occurs before  or  after the  law's effective  date.          Hence, a statute's application is usually deemed prospective when          it implicates conduct  occurring on or after  the effective date.          See Cox v. Hart, 260 U.S. 427, 434-35 (1922); EPA  v. New Orleans          ___ ___    ____                               ___     ___________          Pub. Serv., Inc.,  826 F.2d 361,  365 (5th Cir.  1987); see  also          ________________                                        ___  ____          Allied  Corp. v.  Acme  Solvents Reclaiming,  Inc., 691  F. Supp.          _____________     ________________________________          1100, 1110 (N.D. Ill.  1988); King v. Mordowanec, 46  F.R.D. 474,                                        ____    __________          482 (D.R.I.  1969).   Even when the  later-occurring circumstance          depends upon the existence of a prior fact, that interdependence,          without  more,  will  not  transform  an   otherwise  prospective          application  into a retroactive one.  See New York Cent. & Hudson                                                ___ _______________________                                          5          River  R.R. Co. v.  United States (No.  2), 212 U.S.  500, 505-06          _______________     ______________________          (1909) (holding that a  statute prohibiting rebates could validly          be applied to a rebate  paid after the act's effective date  with          respect to property transported before the act's effective date);          Gonsalves v. Flynn, 981  F.2d 45, 48-49 (1st Cir.  1992) (holding          _________    _____          that an  amendment to a tolling  provision operates prospectively          when it bars a suit filed after its enactment, even  if the claim          accrued  before the law changed).  Phrased another way, a statute          does  not operate  retroactively simply  because its  application          requires some reference to  antecedent facts.  See Cox,  260 U.S.                                                         ___ ___          at 435; see also New Orleans Pub. Serv., 826 F.2d at 365 ("A  law                  ___ ____ ______________________          is  not   made  retroactive   because  it  alters   the  existing          classification of a thing.").                    This  means, of course,  that a statute  may modify the          legal  effect   of  a  present  status  or  alter  a  preexisting          relationship without running up against the retroactivity hurdle.          The key lies in how the law interacts with the facts.  So long as          a neoteric law determines status solely for the purpose of future          matters, its application is deemed prospective.  See New  Orleans                                                           ___ ____________          Pub. Serv., 826 F.2d at 365.          __________                    Employing  these first  principles,  FIRREA's reach  in          this  case  cannot  be  deemed  retroactive.    Signing  a  lease          containing  an  ipso  facto  clause does  not  in  itself unleash                          ____  _____          section  1821(e)(12)(A).   Only  subsequent events  can pull  the          trigger.  Here, for example, FIRREA was brought into play through          a  collocation of  circumstances,  all occurring  well after  the                                          6          law's  effective  date:    the tenant's  insolvency,  the  FDIC's          appointment as  receiver, and  the landlord's attempt  to utilize          the lease's escape hatch.   It follows that, because  the conduct          triggering the statute's application occurred long after FIRREA's          enactment, using section 1821(e) to  trump the ipso facto  clause                                                         ____ _____          constitutes a prospective use  of the statute regardless of  when          the lease was executed.4   Any other result would  twist FIRREA's          structure,  do violence  to  its clear  language, and  needlessly          frustrate Congress's  intent to  "deal expeditiously  with failed          financial  institutions."   H.R.  Conf. Rep.  No. 101-222,  101st          Cong.,  1st Sess.  (1989),  reprinted in  1989 U.S.C.C.A.N.  432.                                      _________ __          After all, if courts were to construe FIRREA so as to shield from          its  grasp  all  claims  arising  from  contracts  formed  before          FIRREA's enactment, Congress's efforts to protect the public from          existing and anticipated bank failures would be hamstrung.                                        ____________________               4In  attempting  to  buttress  its claim  of  retroactivity,          appellant relies on  United States v.  Security Indus. Bank,  459                               _____________     ____________________          U.S. 70 (1982),  and Hodel v. Irving, 481 U.S.  704 (1987).  Both                               _____    ______          cases  are  inapposite.  Security Bank stands for the proposition                                   _____________          that  an  attempted  invalidation  of liens  perfected  prior  to          passage of  the Bankruptcy  Reform Act constituted  a retroactive          application of the Act.  459 U.S. at 78-79.  That situation would          be analogous to, say,  an FDIC attempt to undo  a landlord's pre-          FIRREA eviction  of an  insolvent bank tenant.   That is  not the          case at bar.                    Hodel   involved   a    statute   forbidding    certain                    _____          testamentary  transfers.   As  applied, the  statute operated  to          extinguish devises  originating with  individuals who  died after          the act's effective date.   See 481 U.S. at 709.   Significantly,                                      ___          the question of whether,  as a matter of statutory  construction,          the  act  must  be  deemed   to  operate  retroactively  when  it          implicates wills drawn before the effective date was a non-issue.          Rather,  the court  examined whether  the property  regulation as          applied constituted  an unconstitutional taking  under the  Fifth          Amendment.  See id. at 713-18.                      ___ ___                                          7                    Our conclusion that the district court's use of section          1821(e) did not constitute a retroactive application is fortified          by three  other  pieces of  supporting data.   The  first is  the          opinion in Hawke Assocs. v. City Fed. Sav. Bank, 787 F. Supp. 423                     _____________    ___________________          (D.N.J. 1991).  To all intents and purposes, Hawke is squarely on                                                       _____          point.  There, the court applied section 1821(e)(12)(A) to render          unenforceable a lease  termination clause similar  to the one  at          issue  here.   See id.  at 426-27.   While  the parties  in Hawke                         ___ ___                                      _____          signed the lease nearly two  years before FIRREA's enactment, the          tenant  entered  receivership  four  months after  the  statute's          effective date.5  See id. at 424.                            ___ ___                    Second,  we  find  instructive the  caselaw  construing          section  365(e)(1) of the Bankruptcy  Code, 11 U.S.C.   365(e)(1)          (1988).   Courts  have consistently  held  that section  365,  an          enactment   which  renders   termination-upon-insolvency  clauses          unenforceable  in bankruptcy,  applies  to  leases predating  the          Code.   See, e.g., Matter  of Triangle Lab., Inc.,  663 F.2d 463,                  ___  ____  ______________________________          467 (3d Cir. 1981) (observing that   365(e)(1) controls "leases .          .  . executed prior to the effective  date of the Code" when "the                        _____          event which trigger[s] the bankruptcy termination clause occur[s]          after the effective  date of  the Code"); In  Re Sapolin  Paints,          _____                                     _______________________                                        ____________________               5There are other  decisions to  like effect.   In Longley  I                                                                 __________          Realty Trust, ___ F.2d at ___ [slip op. at 8], this court applied          ____________          a FIRREA provision codified  at 12 U.S.C.   1823(e) to nullify an          alleged  oral agreement  originating before  the  Act's effective          date. In RTC v.  Southern Union Co., No. MO-91-CA-120  (W.D. Tex.                   ___     __________________          July  7, 1992),  the  Resolution  Trust Corporation  successfully          invoked,  inter   alia,  section  1821(e)(12)(A)   to  enforce  a                    _____   ____          repurchase agreement that predated FIRREA.                                          8          Inc.,  5 B.R.  412, 414-17 (Bankr.  E.D.N.Y. 1980)  (nullifying a          ____          termination-upon-bankruptcy clause  in a lease that  predated the          Code  where the  lessee's  insolvency occurred  after the  Code's          effective date).  We think the analogy between the concinnous use          of Code section 365(e)(1) and  FIRREA section 1821(e)(1)(A) is  a          powerful one.                    Third,  we take  some modest  comfort in  the awareness          that  a variety  of FIRREA  provisions,  albeit provisions  of an          essentially procedural  nature, have  been held to  affect claims          arising  out   of  contracts  entered  into   prior  to  FIRREA's          enactment.    See,  e.g.,  Demars, 907  F.2d  at  1239  (applying                        ___   ____   ______          FIRREA's grant  of federal jurisdiction  to cases pending  at the          time of enactment); In Re Resolution Trust Corp., 888 F.2d 57, 58                              ____________________________          (8th Cir. 1989) (same);  Triland Holdings & Co. v.  Sunbelt Serv.                                   ______________________     _____________          Corp.,  884 F.2d 205, 207 (5th Cir. 1989) (same); see also United          _____                                             ___ ____ ______          Bank v. First  Republic Bank Waco, 758 F. Supp.  1166, 1168 (W.D.          ____    _________________________          Tex. 1991) (applying  FIRREA's administrative  claims process  to          cases pending on FIRREA's effective date).                    For  these reasons,  we  reject  appellant's  principal          assignment of error, concluding  that, by construing section 1821          to trump the lease's preexisting ipso facto clause,  the district                                           ____ _____          court  carried  out  a  proper  prospective  application  of  the          statute.          III.  THE TAKINGS CLAUSE          III.  THE TAKINGS CLAUSE                    We  move  now to  appellant's  fallback  position.   He          asserts that applying FIRREA to thwart a preexisting termination-                                          9          upon-insolvency clause  violates the  Fifth Amendment.6   On this          point, appellant argues that his inability to abort the lease and          repossess the property notwithstanding the  tenant bank's failure          destroys  his  right  to the  use  and  enjoyment  of the  leased          premises,  thereby effecting  an unconstitutional  taking without          compensation analogous to  those arising from  various proscribed          physical invasions.  See,  e.g., Lucas v. South  Carolina Coastal                               ___   ____  _____    _______________________          Council,  112 S. Ct.  2886, 2893 (1992);  Loretto v. Teleprompter          _______                                   _______    ____________          Manhattan CATV Corp., 458 U.S. 419, 435-38 (1982).  We  test this          ____________________          proposition.                    The concept  of a  "taking" within  the meaning  of the          Fifth Amendment defies precise  definition.7  Indeed, the Supreme          Court  has  "eschewed the  development  of any  set  formula" for          determining   which   property-right   infringements   constitute          compensable  takings,   relying  "instead  on  ad   hoc,  factual          inquiries  into  the  circumstances  of  each  particular  case."                                        ____________________               6The Fifth Amendment states in part that:                         No  person shall  . .  . be  deprived of                    life,  liberty,  or  property,   without  due                    process of law; nor shall private property be                    taken   for   public   use,    without   just                    compensation.          U.S. Const. amend. V.               7Withal, the court has identified two discrete categories of          regulatory   takings  that,  if  left  uncompensated,  constitute          unconstitutional takings per se.  These categories, which need no                                   ___ __          "case-specific  inquiry into  the  public  interest  advanced  in          support of  the restraint," are (1)  permanent physical invasions          and (2) regulations which  "den[y] all economically beneficial or          productive use  of  land."   Lucas,  112 S.  Ct.  at 2893.    The                                       _____          restriction at issue in this case falls into neither category.                                          10          Connolly  v. Pension  Benefit  Guar.  Corp.,  475 U.S.  211,  224          ________     ______________________________          (1986).   Three factors that  rank paramount in  this inquiry are          (1) the regulation's "economic impact" on the property owner, (2)          the  extent to  which  the regulation  interferes with  "distinct          investment-backed expectations,"  and (3) the  "character" of the          interference, that  is, whether  the governmental action  is more          akin to a  physical invasion  or to a  necessary readjustment  of          economic benefits and  burdens.   Penn Cent. Transp.  Co. v.  New                                            _______________________     ___          York City, 438 U.S. 104, 124 (1978); accord Connolly, 475 U.S. at          _________                            ______ ________          225; Ruckelshaus  v. Monsanto  Co.,  467 U.S.  986, 1005  (1984).               ___________     _____________          This trichotomous  test compels  the conclusion that  the alleged          infringement here in no way constitutes a compensable taking.                    We first  assess the  severity of the  economic impact.          The  hallmark of an  unconstitutional taking  is, of  course, the          denial  of the  "economically viable  use of [an  owner's] land."          Agins v. City  of Tiburon, 447  U.S. 255, 260  (1980).  Thus,  an          _____    ________________          infringement  that  leaves virtually  the  whole  of the  owner's          possessory  rights intact  does not  constitute a  taking.   See,                                                                       ___          e.g.,  Penn Cent.,  438  U.S.  at  130-31;  Gilbert  v.  City  of          ____   __________                           _______      ________          Cambridge, 932 F.2d 51, 56 (1st Cir.) (rejecting takings argument          _________          where  the regulation  in question  "preserve[d]  an economically          viable  property use to landlords"), cert. denied, 112 S. Ct. 192                                               _____ ______          (1991).   Put  another  way, "where  an  owner possesses  a  full          `bundle' of property rights,  the destruction of one `strand'  of          the bundle is not a taking, because the  aggregate must be viewed          in its entirety."  Andrus v. Allard, 444 U.S. 51, 65-66 (1979).                             ______    ______                                          11                    The   economic   regulation   involved  here   deprives          appellant  only  of his  right to  terminate  the lease  upon the          FDIC's appointment  as  receiver.    He still  enjoys  all  other          common-law rights particular to  lessors; all other provisions in          the lease, including those that allow appellant  to terminate the          lease for, say,  breach of the agreement to pay  rent in a timely          fashion or breach  of the  covenant to maintain  the premises  in          good  order, remain in  full force.   FIRREA's application, then,          can  hardly be  said to  deprive appellant  of anything  remotely          resembling his entire bundle of rights.                    What is  more, the present tenant,  as FDIC's assignee,          is not  a free rider.   It  must use  the premises  only for  the          purposes permitted in  the lease, abide by the lease's covenants,          and  pay the rent and  other emoluments stipulated  in the lease.          Thus,  the  only  economic harm  that  befalls  appellant  from a          frustration  of the  ipso facto  clause is  whatever anticipatory                               ____ _____          harm  may stem from his  lost opportunity to  re-rent the Hyannis          property at a  potentially more  lucrative rate.   Such a  "loss"          does not weigh heavily in the constitutional balance.  See id. at                                                                 ___ ___          66  (observing  that  "the  interest  in  anticipated  gains  has          traditionally been viewed as less compelling than other property-          related  interests").    In   the  circumstances  of  this  case,          extinguishing  appellant's  preexisting  right  to  terminate the          lease  upon the  bank  tenant's failure  creates  only a  minimal          impairment of appellant's overall rights in the Hyannis property.                    The second significant factor in determining whether  a                                          12          regulation constitutes  a Fifth  Amendment taking  implicates the          extent  of the interference  with investment-backed expectations.          The  inquiry  into  this  factor further  undermines  appellant's          position.                    Although  prudent landlords pepper leases with a myriad          of provisions designed to guard against worst-case contingencies,          landlords  nevertheless lease  property in  the expectation  that          they  will receive  the agreed-upon  rent, not  in the  hope that          adverse  contingencies will  materialize  and  bring  contractual          safeguards  into  play.    Moreover,  considering  the  pervasive          regulation that has long characterized the banking industry, see,                                                                       ___          e.g.,  Fahey v. Mallonee, 332  U.S. 245, 250  (1947) ("Banking is          ____   _____    ________          one of  the  longest regulated  and  most closely  supervised  of          public callings."), no reasonable  landlord would anticipate that          every provision in a long-term bank  lease will remain unaffected          by subsequent changes in federal law.  Those who  deal with firms          in regulated industries must expect that their dealings will from          time  to time  be affected by  statutory and  regulatory changes.          See Connolly, 475 U.S. at 227.          ___ ________                    Given  that  the  reasonable  expectation  to  which  a          landlord  is entitled is an  uninterrupted stream of  rent at the          contract  rate, not  the future  exercise of  a termination-upon-          insolvency clause,  FIRREA cannot be viewed as interfering with a          vested property  interest, the usurpation of  which would require          compensation.  See Penn Cent., 438 U.S. at 124-25 (observing that                         ___ __________                                          13          government  actions, even  those which  "cause[] economic  harm,"          cannot be  considered takings  when they  do not  "interfere with          interests that  [are] sufficiently  bound up with  the reasonable          expectations of  the claimant to constitute  `property' for Fifth          Amendment  purposes").    In  the last  analysis,  FIRREA  leaves          appellant firmly in possession  of the essence of that  for which          he bargained:  a fixed rent for a fixed period.                    Turning to the third  factor, we do not think  that the          governmental action here at  issue resembles a physical invasion.          The government, through FIRREA, is  not appropriating appellant's          property for its  own use.   Rather,  it is  altering the  future          operation  of  landlords'  and tenants'  preexisting  contractual          rights in order to stem the disruption of banking services within          communities, lessen  the costs  of bank liquidation,  and restore          public confidence  in the  nation's banking  system.   In  short,          FIRREA's role here is  to reallocate economic pluses  and minuses          in what  we find to be  an apt illustration of  the aphorism that          "Congress  routinely  creates  burdens  for  some  that  directly          benefit others."   Connolly, 475 U.S.  at 223.  There  is nothing                             ________          wrong  per se with such  expressions of legislative  will or with                 ___ __          the readjustments that they produce.                    In a nutshell, the character of the governmental action          strongly favors  the  appellees' position.   The  mere fact  that          future  obeisance to the newly enacted law might cause a property          owner, as  in this case, to  forgo an opportunity for  gain is no          more than a necessary  consequence of FIRREA's regulatory regime.                                          14          Hence, if there is  an invasion of a property right at all, it is          a  tiny invasion  of  a lambent  right,  arising "from  a  public          program that adjusts the benefits and burdens of economic life to          promote  the common  good," id.  at 225, and,  as such,  does not                                      ___          constitute a  taking.  See  id.; accord  Andrus, 444 U.S.  at 65;                                 ___  ___  ______  ______          Penn Cent., 438 U.S. at 124; Usery v. Turner  Elkhorn Mining Co.,          __________                   _____    __________________________          428 U.S. 1,  15-16 (1976);  Pennsylvania Coal Co.  v. Mahon,  260                                      _____________________     _____          U.S. 393, 413 (1922).                    We  need  go no  further.    Here, the  three  integers          composing the applicable  equation unanimously suggest  rejection          of appellant's Takings Clause argument.  We heed that counsel.          IV.  CONCLUSION          IV.  CONCLUSION                    To  recapitulate,  applying  section 1821(e)(12)(A)  to          trump the ipso facto clause in the Hyannis lease is a prospective                    ____ _____          application  of  FIRREA  and,  thus, lawful.    Furthermore,  the          resulting  impairment of  the landlord's  right to  terminate the          lease upon the tenant bank's failure does not infract the Takings          Clause.  The judgment of the district court must, therefore, be          Affirmed.          Affirmed.          ________                                          15
