
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1936                                    FLOYD V. HENO,                                Plaintiff, Appellant,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Robert G. Wilson IV, with whom Robert  G. Wilson III and Law               ___________________            _____________________     ___          Offices of Robert G. Wilson III were on brief for appellant.          _______________________________               Robert  R.  Pierce,  with  whom Russell  F.  Conn  and Conn,               __________________              _________________      _____          Kavanaugh, Rosenthal & Peisch were on brief for appellee.          _____________________________                                 ____________________                                    April 22, 1994                                 ____________________                    CYR, Circuit Judge.   Plaintiff Floyd Heno appeals from                    CYR, Circuit Judge.                         _____________          a  district court  order dismissing  claims for  compensatory and          injunctive relief brought  against the Federal Deposit  Insurance          Corporation ("FDIC") under the Financial Institutions  Reform and          Recovery  Act ("FIRREA").   In  an earlier  opinion, see  Heno v.                                                               ___  ____          FDIC,  996 F.2d  429 (1st  Cir. 1993),  we affirmed  the district          ____          court order  dismissing the claim for  injunctive relief pursuant          to Federal Rule of Civil Procedure 12(b)(6), but vacated its Rule          12(b)(1)  order dismissing  the  claim  for compensatory  relief.          Thereafter, we granted FDIC's petition for panel rehearing on the          claim  for compensatory  relief,  see Fed.  R.  App. P.  40,  and                                            ___          allowed further  briefing, argument, and  supplementation of  the          appellate record relating to  the proper interpretation of FIRREA            1821(d),  (e), 12 U.S.C.   1821(d),  (e).  We  now withdraw our          original opinion, and substitute the present opinion.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________          A.   The "Claim"          A.   The "Claim"               __________                    We review a Rule  12(b)(6) dismissal de novo, crediting                                                         __ ____          all  allegations  in the  complaint  and  drawing all  reasonable          inferences favorable to  the plaintiff.   Scheuer v. Rhodes,  416                                                    _______    ______          U.S. 232, 236 (1974); Rumford Pharmacy, Inc.  v. East Providence,                                ______________________     _______________          970 F.2d 996, 997  (1st Cir. 1992).   Similarly, a Rule  12(b)(1)          dismissal is reviewed de novo  where, as here, the only issue  is                                __ ____          the legal  sufficiency of  undisputed jurisdictional facts.   See                                                                        ___                                          2          Eaton  v. Dorchester  Dev., Inc.,  692 F.2d  727, 732  (11th Cir.          _____     ______________________          1982);  Mortensen v. First Fed. Sav. &  Loan Ass'n, 549 F.2d 884,                  _________    _____________________________          891 (3d Cir. 1977).                    The complaint alleges that Heno sold Balcol Corporation          a 104-acre tract of real property  in 1986, for which Balcol gave          Heno  a  promissory  note secured  by  a  first  mortgage on  the          undeveloped property.  In September 1987, Balcol began to develop          the  property,   known  as   the  Prospect   Heights  residential          subdivision,  and obtained  construction  financing through  Home          National Bank of  Milford ("Bank").   Heno agreed to  subordinate          his  first mortgage to the Bank's construction loan mortgage.  In          return for the release of Heno's second mortgage lien as each lot          was  sold, Balcol and the  Bank promised to  release $19,125 from          the sale proceeds.                    By April 1990, Balcol  and Prospect Heights were exper-          iencing financial  difficulties, and the three  principal parties          entered into a recapitalization agreement.  Heno agreed to accept          $5,000 (rather  than $19,125)  per lot  for releasing  his second          mortgage  lien on the next nine lots  sold by Balcol.  Balcol and          the Bank agreed:   (1) to  transfer two additional  lots to  Heno          (Lots 82 and  111), free and clear  of the Bank's  first mortgage          liens, at the time Heno released his  second mortgage lien on the          ninth lot; and (2) to deposit the net proceeds from the nine lots          in  escrow with  the Bank.   The  escrow monies  were to  be used          exclusively for  immediate completion of roadwork  in the project          andto defray Balcol's firstmortgage interest paymentsto the Bank.                                              ________                                          3                    Although  Balcol conveyed  Lots 82 and  111 to  Heno on          May 2, 1990, the Bank did not release its first mortgage liens on          the lots.  During April and  May 1990, seven of the nine original          lots were  sold by the  Bank after Heno  had released his  second          mortgage liens.   By June 1,  1990, more than  $232,000 had  been          deposited   in   escrow   with   the   Bank   pursuant   to   the          recapitalization  agreement  among  Heno, Balcol,  and  the Bank.          Ultimately,  the eighth  and ninth  lots were  sold, and  the net          proceeds, approximating $90,000, were  deposited with FDIC.1  The          complaint  alleges, hence  we must assume,  that $125,000  was to          have been devoted to roadwork at the project.2                    On June 1,  1990, the  Bank was declared  insolvent and          FDIC  was appointed receiver.  At an unspecified later date, FDIC          applied  the escrow monies  toward the principal  due on Balcol's                                                 _________          first  mortgage  loan  account with  the  Bank,  contrary  to the          express terms of the  recapitalization agreement.  Heno's counsel          thereafter held discussions with FDIC, and was informed by Balcol          that FDIC  would determine, after  obtaining an appraisal  of the          Prospect  Heights project,  whether to  release the  Bank's first          mortgage liens on  Lots 82 and  111, the two  additional lots  at                                        ____________________               1The complaint  does not specify the date(s) of these sales,          but  the proceeds were deposited with FDIC on or about October 1,          1990.               2At  oral  argument,  Heno's  counsel  represented  that the          roadwork was never performed.                                          4          issue  on  appeal.     On  December 13,   1990,3  and  again   on          February 19, 1991, Heno submitted  written requests for action by          FDIC, but to  no avail.4   Subsequently, FDIC  foreclosed on  the          Prospect Heights  subdivision, including  Lots 82  and 111.   The          escrow  monies were  neither redeposited  nor applied  toward the          purposes agreed upon under the recapitalization agreement.                    On October 18,  1991, Heno initiated the present action          to  enjoin FDIC's sale  of Lots  82 and 111  and to compel  it to          redeposit  the escrow  monies previously  misapplied to  Balcol's          first  mortgage  with  the  Bank.    The  complaint  demanded  an          equitable  accounting  of  the  escrow  monies, and  compensatory                                        ____________________               3Heno's December 13 letter specifically requested release of          the Bank's  first mortgage liens  on Lots  82 and 111  and served          "notice of [Heno's] contingent interest in [the escrow account]."          The letter went on to say:               Heno  should receive  either the  lot releases  or that               portion  of  the  escrow account  attributable  to  his               participation in the agreement.  Under well established                                                _____ ____ ___________               fiduciary and equitable principles,  if the FDIC is not               _________ ___ _________ __________   __ ___ ____ __ ___               going to honor the purposes of the escrow account, that               _____ __ _____ ___ ________ __ ___ ______ _______  ____               portion  of the escrow  account attributable  to Heno's               _______  __ ___ ______  _______ ____________  __ ______               participation should  be returned to him,  and not used               _____________ ______  __ ________ __ ___   ___ ___ ____               by the Receiver to reduce Balcol's obligation.               __ ___ ________ __ ______ ________ __________          (Emphasis  added.)     Heno's  complaint  demands   an  equitable          accounting  of  the escrow  monies,  and,  accordingly, does  not          specify  the  exact  amount  claimed.    However,  were  Heno  to          establish a  repudiation  of the  recapitalization agreement,  he          could  be expected to assert  a claim for  the difference between          the  $19,125 originally  agreed  upon, and  the  $5,000 he  later          agreed to accept under the recapitalization agreement for releas-          ing his second mortgage liens on the nine lots sold by Balcol (or          approximately $127,000).               4The February 19, 1991, letter outlines, among other things,          the evidence relating to Heno's interest in the escrow monies and          certain  subdivision  lots,  and  makes  reference  to additional          letters not included in the appellate record.                                          5          relief for the loss  occasioned by FDIC's refusal to  release the          Bank's first  mortgage liens on Lots  82 and 111.   FDIC moved to          dismiss the  claim for compensatory  relief pursuant  to Fed.  R.          Civ. 12(b)(1), and  the claim for  injunctive relief pursuant  to          Fed. R.  Civ. P. 12(b)(6).   The  district court decided  that it          lacked jurisdiction to consider the claim for compensatory relief          by virtue  of 12 U.S.C.   1821(d)(13)(D)(i),  and that injunctive          relief was precluded by 12 U.S.C.   1821(j).          B.   The Original Panel Opinion          B.   The Original Panel Opinion               __________________________                    FIRREA   1821(d) regulates  the filing,  determination,          and  payment of  "claims"  against "assets"  of failed  financial          institutions after FDIC has been appointed receiver.  Subsections          1821(d)(3)(B)  and (C) require FDIC to publish and mail notice of          liquidation to  "any creditor  shown on the  institution's books"          and to allow at least ninety days for filing "claims."  12 U.S.C.            1821(d)(3)(B),  (C).  As FDIC points out, anyone with a "claim"          against  the  assets of  the  failed institution  must  submit an          administrative  claim to  FDIC  within  the prescribed  statutory          period.     Id.     1821(d)(5)(C).     "[P]articipation  in   the                      ___          administrative  claims  review  process  [is] mandatory  for  all          parties asserting  claims  against failed  institutions  . . . ."          Marquis v. FDIC, 965 F.2d 1148, 1151 (1st Cir. 1992).  Failure to          _______    ____          participate   in   the  administrative   claims   review  process          (hereinafter  "ACRP")  is  a  "jurisdictional  bar"  to  judicial          review.  Id.; see also 12 U.S.C.   1821(d)(13)(D); FDIC v. Shain,                   ___  ___ ____                             ____    ______          Schaffer & Rafanello, 944 F.2d 129, 132 (3d Cir. 1991) ("Congress          ____________________                                          6          expressly withdrew jurisdiction from all courts over any claim to          a  failed bank's assets that are [sic] made outside the procedure          set forth in section  1821.").5  The subsection 1821(d)  bar date          for  filing  administrative  claims   in  the  present  case  was          September 6,  1990.    Since  neither  letter  detailing   Heno's          "claims" predated  the bar date,  see supra  notes 3  and 4,  the                                            ___ _____          district  court ruled  that Heno  could no  longer file  a timely          administrative  claim  under  subsection 1821(d),  and  that  his          "claims" therefore were not entitled to judicial review.                    Heno  consistently  has  advanced  two  contentions  on          appeal.   First,  he argues  that neither  FIRREA    1821(j), see                                                                        ___          infra note 8, nor the ACRP established under  subsection 1821(d),          _____          applies to "non-creditors"    including Heno    who assert claims          to  property, such as  the alleged escrow  account, which, though          held by the failed bank, is held "in trust" for third parties and               __                                        ____________________               5Section 1821(d)(13)(D) provides:                    (D)  Limitation on judicial review                    (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 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.          12 U.S.C.   1821(d)(13)(D).                                          7          is not  a bank  "asset."6   See,  e.g., Purcell  v.  FDIC (In  re                                      ___   ____  _______      ____  ______          Purcell), 141 B.R. 480 (Bankr. D. Vt. 1992), aff'd, 150 B.R. 111,          _______                                      _____          113-15  (D.  Vt. 1993).   Second,  and  in the  alternative, Heno          contends  that his claim for  compensatory relief should not have          been  dismissed for  failure  to comply  with the  administrative          claim procedure established under subsection 1821(d).                    The "task of interpretation begins with the text of the          statute  itself,  and statutory  language  must  be accorded  its          ordinary  meaning."   Telematics  Int'l,  Inc.  v. NEMLC  Leasing          ________  _______     ________________________     ______________          Corp.,  967 F.2d  703, 706 (1st  Cir. 1992)  (interpreting FIRREA          _____            1821(j))  (emphasis added) (citations  omitted).   The original          panel opinion  rejected FDIC's contention that  Heno was required          to file an administrative  claim before the bar date  even though                                           ______          the "claim" was grounded in a pre-receivership agreement with the                                        ________________          Bank  and remained executory and unrepudiated both at the time of          FDIC's appointment  and throughout  the entire 90-day  bar period          prescribed in subsections 1821(d)(3)(B)(i)  and 1821(d)(5)(C)(i).                                        ____________________               6At reargument,  Heno urged  that   1821(d)(13)(D)  be ruled          wholly inapplicable for this reason, suggesting that the issue is          ripe  for appellate  review  because it  might  affect any  later          district court decision as to the scope of Heno's damages remedy.          We decline the invitation  for two reasons.  First,  given FDIC's          blanket concession at reargument, the "asset" issue is  no longer          essential  to  proper resolution  of  the  question of  appellate          jurisdiction.    Second, the  district  court  has  yet  to  make          findings  as to  whether (or  which) Bank  records may  have been          lost.   On remand, therefore, Heno may confront a serious problem          of proof.  See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942);                     ___ ____________________    ____          see also 12  U.S.C.   1823(e).   Thus, though  the D'Oench  Duhme          ___ ____                                           ______________          document  requirement is  not  jurisdictional, and  Heno will  be          entitled to reasonable discovery, see generally Tuxedo Beach Club                                            ___ _________ _________________          Corp. v.  City Fed.  Sav.  Bank, 749  F. Supp.  635, 644  (D.N.J.          _____     _____________________          1990), he may not be able to overcome certain FDIC defenses which          could obviate any issue relating to damages.                                          8          As our opinion pointed out, FIRREA   1821(d) prescribes a  single          exception to  the pre-bar  date filing  requirement:   it permits          late-filed claims only if "the claimant did not receive notice of                            ____ __          the appointment of the receiver in time to file such claim before          such  date; and  . . .  such claim  is filed  in  time to  permit          payment of such claim."  12  U.S.C.   1821(d)(5)(C)(ii).  Because          Heno    no doubt like  many others who assert claims  arising out          of executory  contracts  with a  failed  bank     concededly  had          actual notice  of FDIC's appointment,  but held no  assertable or                                                          __          provable  "claim" until  after the bar  date, the  original panel                                   _____          opinion  reasoned  that  the  ACRP  established under  subsection          1821(d)  rationally  could not  have  been  intended to  preclude          judicial review of  post-receivership "claims" which  arise after                                                                _____ _____          the expiration  of the 90-day administrative-claim filing period.          Rather, inasmuch as FDIC received two post-bar date requests from          Heno that it either affirm or repudiate the alleged reaffirmation          agreement   within  a   "reasonable  period   following  [FDIC's]          appointment," see 12 U.S.C.   1821(e)(2); supra notes 3 and 4, we                        ___                         _____          held Heno's claim for contract repudiation subject instead to the          more flexible  time constraints established in  FIRREA   1821(e).          See,  e.g., Ceguerra v. Secretary of Health and Human Servs., 933          ___   ____  ________    ____________________________________          F.2d  735, 742 (9th Cir.  1991) ("[W]hen an administrative agency          interprets  its  governing  statute  to require  such  an  absurd          result, we owe that interpretation no deference.")7                                          ____________________               7Subsection 1821(e) provides, in pertinent part:               (e)  Provisions  relating  to  contracts  entered  into               (e)  Provisions  relating  to  contracts  entered  into                                          9          C.   The Petition for Rehearing          C.   The Petition for Rehearing               __________________________                    The petition for rehearing  represents that but for the          fact  that these  claims  were never  considered claims  based on          contract repudiation, FDIC would have invoked its extant internal                                                            ______          agency manual procedures for processing such post-bar date claims          (hereinafter:   "internal manual procedures").  Accordingly, FDIC          urged remand to  permit the district  court to determine  whether          Heno  had  complied with  the  internal  manual procedures  first          disclosed in FDIC's petition for  rehearing.  At reargument, FDIC          withdrew its request for  remand, as unnecessary, after conceding                                        ____________________                    before appointment of conservator or receiver                    before appointment of conservator or receiver               (1)  Authority to repudiate contracts               (1)  Authority to repudiate contracts                    In addition  to any other rights  a conservator or               receiver may have, the  conservator or receiver for any               insured   depository   institution  may   disaffirm  or               repudiate any contract or lease                       (A)  to which such institution is a party;                    (B)  the  performance of which  the conservator or                         receiver, in the conservator's  or receiver's                         discretion, determines to be burdensome; and                    (C)  the disaffirmance or repudiation of which the                         conservator  or  receiver determines,  in the                         conservator's or  receiver's discretion, will                         promote  the  orderly  administration of  the                         institution's affairs.               (2)  Timing of repudiation               (2)  Timing of repudiation                    The  conservator  or  receiver  appointed  for any               insured  depository  institution  in   accordance  with               subsection (c) of this section  shall determine whether               or not to exercise the rights of repudiation under this               subsection  within a  reasonable period  following such               appointment.          12 U.S.C.   1821(e)(1), (2).                                          10          that Heno's detailed letter requests to FDIC in December 1990 and          February 1991,  see supra notes 3 and 4, placed FDIC on notice of                          ___ _____          the  existence and  nature  of Heno's  post-bar date  claims well          within the time allotted under FDIC's internal manual procedures.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Given the concession  that Heno's post-bar  date claims          were timely  filed under  FDIC's internal manual  procedures, the          one remaining question is  whether judicial deference is  due the          FDIC   interpretation   of   subsections  1821(d)(5)(C)(ii)   and          1821(d)(13) implicit in its internal manual procedures.8                    The  guidelines governing deference to an administering          agency's interpretation of its enabling statute are well settled:                    First,  always,  is   the  question   whether                    Congress  has directly spoken  to the precise                    question at issue.  If the intent of Congress                    is clear, that is the  end of the matter; for                                        ____________________               8We  need  not  reconsider  our  earlier  holding  that  the          district  court  lacked   jurisdiction  over  Heno's   claim  for          injunctive relief,  a claim expressly barred  by   1821(j), which          provides in part:               Except  as provided in this  section, no court may take               any  action, except  at  the request  of  the Board  of               Directors by regulation or order, to restrain or affect                                                 __ ________ __ ______               the exercise of powers  or functions of the Corporation               ___ ________ __ ______  __ _________               as a conservator or a receiver.               __ _ ___________ __ _ ________          12 U.S.C.    1821(j) (emphasis added); see  Telematics Int'l, 967                                                 ___  ________________          F.2d at 707 ("holding that the district court  lacks jurisdiction          to  enjoin FDIC  when FDIC  is acting  pursuant to  its statutory              ______          powers as receiver") (emphasis added).                                          11                    the court,  as well as the  agency, must give                    effect to the unambiguously  expressed intent                    of Congress.   If, however, the  court deter-                    mines Congress has not directly addressed the                    precise question at issue, the court does not                    simply impose  its  own construction  on  the                    statute, as would be necessary in the absence                             __ _____ __ _________ __ ___ _______                    of an administrative interpretation.  Rather,                    __ __ ______________ ______________                    if the  statute is silent  or ambiguous  with                    respect to a specific issue, the question for                    the court is  whether the agency's  answer is                    based  on a  permissible construction  of the                    statute.          Chevron U.S.A., Inc. v.  Natural Resources Defense Council, Inc.,          ____________________     _______________________________________          467  U.S.  837,  842-43  (1984)  (emphasis  added).    Under  the          statutory   interpretation  implicit   in  its   internal  manual          procedures,   FDIC  construes  the   pivotal  statutory  bar-date          exception in  subsection 1821(d)(5)(C)(ii)     "the claimant  did          not receive notice of  the appointment of the receiver in time to          file  such claim  before [the  bar] date"     as  permitting late          filing even by claimants who were on notice of FDIC's appointment                 ____ __ _________ ___ ____ __ ______ __ ______ ___________          but  could not  file their  claim because  it did  not come  into          existence  until after  the  bar date  prescribed in  subsections          1821(d)(3)(B)(i) and 1821(d)(5)(C)(i).                    Although we concur in FDIC's candid assessment that its          proposed interpretation is  far from the most  natural reading of          subsection 1821(d)(5)(C)(ii) itself, we cannot  say that it  does          not represent  a "permissible" reading of  an ambiguous provision          viewed in the broader context of the statute as a whole under the          deferential standard  required by Chevron.  See Chevron, 467 U.S.                                            _______   ___ _______          at  844 (agency construction  is "permissible" unless "arbitrary,          capricious,  or manifestly  contrary  to the  statute") (emphasis                          __________                                          12          added).  In this vein, neither we nor the parties  have found any          other FIRREA provision governing  agency treatment of claims that                                            ______ _________          do not  arise  until more  than 90  days after  the claimant  has          notice of FDIC's appointment as receiver.  Additionally, Congress          has  delegated to  FDIC the  authority to  "prescribe regulations          regarding the allowance or disallowance of claims by the receiver          and  providing  for  administrative determination  of  claims and          review  of such  determination."   12  U.S.C.   1821(d)(4).   The          extant  FDIC  internal  manual procedures  applicable  to  Heno's          claims  comport  with  the  FDIC's interpretation  of  subsection          1821(d)(5)(C)(ii), by explicitly dispensing with  any requirement                                           __________             intrinsic to the pre-bar date ACRP    that holders of post-bar          date claims  establish that  they had  no actual or  constructive          notice of FDIC's appointment.  Compare infra Appendix, Exhibits G                                         _______ _____          and 4-F with Exhibit 5-K.                  ____                    Further, FDIC advances sound policy grounds for afford-          ing it an  opportunity to  evaluate post-bar date  claims in  the          first instance, including contract repudiation claims that do not          arise within  the initial  ninety-day period following  notice of          its appointment as  receiver.   For one thing,  a reasonably  de-          signed and fairly administered post-bar date ACRP should optimize          prospects  for expeditious  resolution  of  these claims  against          failed  banks, make  maximum  use of  FDIC's cumulative  adminis-          trative  expertise,  and minimize  burdensome  litigation  in the          federal courts.  See  Marquis, 965 F.2d at 1152  ("Quite plainly,                           ___  _______          Congress  intended the ACRP  to provide a  streamlined method for                                          13          resolving most  claims against  failed institutions in  a prompt,          orderly fashion, without lengthy  litigation.") (citing H.R. Rep.          No.  101-54(I),  101st  Cong.,  1st  Sess.,  at  418-19  (1989)).          Lastly, absent a clear  signal from Congress to the  contrary, we          must credit an administering agency's reasoned interpretation  of          its enabling statute.  See Chevron, 467 U.S. at  843 n.11 (noting                                 ___ _______          that judicial deference is not dependent on a determination "that          the agency  construction was  the only one  it permissibly  could                                            ____          have  adopted to uphold the construction, or even the reading the          court  would have reached if the question initially had arisen in          a judicial setting");  see also FDIC v.  Philadelphia Gear Corp.,                                 ___ ____ ____     _______________________          476  U.S. 426, 439 (1986) (according  Chevron deference to estab-                                                _______          lished FDIC administrative practice, even though FDIC had not yet          reduced  its statutory interpretation  to "specific regulation");          cf.  Colorado ex  rel. Colorado  State Banking Bd.  v. Resolution          ___  _____________________________________________     __________          Trust Corp., 926  F.2d 931,  944 (10th Cir.  1991) ("[T]he  RTC's          ___________          expert  'judgments about the way  the real world  works . . . are          precisely the kind that agencies are better equipped to make than          the courts.'") (citation omitted).                    Since  FDIC  concedes  that  its  treatment  of  Heno's          administrative requests that his alleged capitalization agreement          with the Bank be assumed by FDIC was tantamount to administrative          review under FDIC's internal  manual procedures,9 and consequent-                                        ____________________               9We expressly  refrain from considering whether the adminis-          trative "mistake" conceded by  FDIC lay in its failure  to notify          Heno of  its post-bar date ACRP within  30 days after it received          the  December 1990  and February  1991  letters, i.e.,  after the                                                           ____          dates  of FDIC's "discovery" of  Heno's claims, or whether Heno's                                          14          ly that  the district  court  had jurisdiction  to review  Heno's          claims,  we have  no  occasion to  determine  the sufficiency  of          FDIC's internal manual procedures.  These matters must await some          future  occasion when FDIC asserts  a jurisdictional bar to judi-          cial review  under FIRREA   1821(d)(13)(D) based  on a claimant's          alleged failure to comply with the internal manual procedures.                     At the same  time, however, we  note that though  amply          invested  with  rulemaking  authority  to  promulgate regulations          under subsection 1821(d)(4),  FDIC has  not done so,  nor has  it          taken  reasonable steps  to forewarn  potential claimants  of the          existence  of its  internal manual  procedures for  filing "late"          _________          claims, thus contributing indispensably to the convoluted  travel          of this case.  Cf., e.g., Lawson v. FDIC, 3 F.3d 11, 14 (1st Cir.                         ___  ____  ______    ____          1993) (noting  that  FDIC's "litigating  style has  some role  in          [creating] confusion"  in the  district courts).10   Accordingly,          the FDIC internal manual procedures are appended to this opinion,          see infra Appendix,  to lessen the likelihood that  future claim-          ___ _____          ants experience a similar ordeal.                     The  district court order dismissing appellant's claims                    _______________________________________________________          for compensatory relief is vacated.  The case is remanded  to the          __________________________________   ____________________________          district  court for  further  proceedings  consistent  with  this          _________________________________________________________________                                        ____________________          letters were proper administrative claims implicitly "disallowed"          when FDIC failed to respond within 180 days after their receipt.               10For example, as recently  as reargument, FDIC continued to          urge  a remand for  administrative exhaustion,  finally conceding          its "mistake" in failing to apply its internal  manual procedures          to Heno's claim only  when it was pressed to  explain the utility          of such a remand.                                          15          opinion.   In  all other  respects, the  district court  order is          _______    ______________________________________________________          affirmed.   Finally, the present opinion is to be substituted for          ________    _____________________________________________________          our original opinion published at 996 F.2d 429.  So ordered.          ______________________________________________   __________                                          16                                       APPENDIX                                       APPENDIX                                       ________                                      EXHIBIT 1          Revised Exhibit 5-K.          FORM:     NOTICE TO CREDITOR  TO FILE A  CLAIM; CREDITOR NOT  AP-                    PEARING IN  BOOKS AND  RECORDS AND/OR  DISCOVERED AFTER                    INITIAL PUBLICATION NOTICE AND [sic] HAS BEEN SENT          Use:      Upon  discovery  of a  claimant  not  appearing on  the                    institution's books and records, a similar notice is to                    be sent within 30  days of discovery of  creditor under                    12 U.S.C.   1821(d)(3)(C)(ii).  Use for claims which do                    not appear  on the institution's books  and are discov-                    ered after the appointment  of the receiver and initial                    publication notice  and letters  to creditors  have al-                    ready been sent.  This form should also be utilized for                    claims discovered after expiration of the bar date.                    Complete  Affidavits of  Mailing, modified  to indicate                    creditor(s) discovered after closing and initial notic-                    es.          [DATE]          [NAME OF CLAIMANT]          [ADDRESS]          SUBJECT:  FIN - Name of Financial Institution                    City, State - in receivership                    NOTICE TO  DISCOVERED CREDITOR  OR CLAIMANT -  PROOF OF                    _______________________________________________________                    CLAIM                    _____          Dear Sir/Madam:          On  [date of  appointment], the  [name of  financial institution]          located at (full  street address  of main office]  was closed  by          [the supervisory  authority], and  the Federal  Deposit Insurance          Corporation was appointed Receiver.  Notice of the appointment of          the receiver has been published as required by law.          The Receiver has discovered that you may have a claim against the          [name of financial institution] or the Receiver.          By published notice, the Receiver  has established [bar date]  as          the last date for filing claims (the "bar date").  Under applica-          ble law, the Receiver must disallow claims which are not filed by          the  bar date,  except the  Receiver may  consider a  claim filed                          ______          after  the bar  date if  it is  shown that  the claimant  did not          receive notice of the appointment of the receiver in time to file          such claim before the bar  date, and such claim is filed  in time          to permit payment of the claim.                                          i          It  is  within the  sole discretion  of  the receiver  whether to          consider claims which are filed after the bar date.          If you wish  to file a  claim, please complete  and sign the  en-          closed Proof of Claim Form.  If your claim is for more than $500,          your claim  form must  be  signed and  sworn to  before a  notary          public.   If  you believe  that you  did not  have notice  of the          appointment of the receiver in time to file your claim by the bar          date,  then you must also file a written statement specifying any          facts  or  circumstances  demonstrating  that you  did  not  have          knowledge of the appointment of the Receiver in time to file your          claim by the bar date.  Please include any documentation support-          ing your claim and your  lack of knowledge of the  appointment of          the Receiver.                                  MAILING YOUR CLAIM                                  __________________          Please mail your Proof of Claim form and written statement to:                                     Claims Agent                        Federal Deposit Insurance Corporation                        Receiver of Name of Failed Institution                                    __________________________                      c/o Federal Deposit Insurance Corporation                                       Address                                       _______                                City, State, Zip Code                                _____________________                              HAND-DELIVERING YOUR CLAIM                              __________________________          You may hand-deliver your Proof of Claim form to the Claims Agent          at the address stated  herein between 8:00 a.m. and 5:00  p.m. on          weekdays (excluding federal holidays).                             [address for hand-delivery]          If you are filing your claim after the bar date, and you wish the          receiver to consider  your claim,  your Proof of  Claim form  and          written statement  must be  POSTMARKED OR HAND-DELIVERED  TO (AND                                      _____________________________________          RECEIVED BY) the Receiver no later than 90 days from  the date or          ____________          post-mark [sic] of this letter, whichever is later.          Upon receipt  of your claim, the  Receiver has up to  180 days to          review and determine whether to allow or disallow your claim.  If          the  Receiver notifies you of the disallowance of your claim, and          you wish to seek  judicial determination of your claim,  you must          file  a lawsuit (or continue  any prior pending  lawsuit) on your          claim, within  60 days after the later of the date or postmark of                 __________________________________________________________          any notice of disallowance,  in the United States  District Court          __________________________          for  the  district in  which  [name  of financial  institution]'s          principal place of business  was located or in the  United States                                          ii          District Court for the District of Columbia or your claim will be          barred.          If you  do not  receive a  notice of  disallowance of  your claim          within 180 days of its filing with the  Receiver and the Receiver          and you have  not agreed, in  writing, to extend the  initial 180          day determination  period, your claim will  be deemed disallowed,          pursuant  to 12 U.S.C.   1821(d)(6)(A).   If this  occurs and you          wish  to file suit on your claim to obtain judicial determination          of  your claim, you must file your  suit within 60 days after the                                                   ________________________          expiration  of the 180 day  period in the  United States District          __________________________________          Court for the district in which [name of financial institution]'s          principal place of business  was located or in the  United States          District Court for the District of Columbia or your claim will be          barred.          The statutory provisions governing  this claims process are found          in section 1821(d)(3)-(13) of Title 12 of the United States Code.          If  you  have  any questions  please  contact  [contact  name] at          [contact phone number].          Sincerely,          Claims Agent(s)          Federal Deposit Insurance Corporation,           as Receiver for [name of financial institution]                                         iii          Revised  Exhibit  4-F.    FDIC-DAS  Settlement  Procedures Manual          Sample          Disaffirmance Letter          Certified Mail          Return Receipt Requested                                             Date          Name          Address          City, State Zip Code          Subject:  FIN #, Name of Closed Financial Institution                    City, State - In Receivership                    Account # (Reference, etc.)                    CONTRACT DISAFFIRMANCE                    ______________________          To Whom It May Concern:          On [date  of appointment]  the [name of  failed institution],  in          [city  and state), was closed  by the [supervisory authority) and          the Federal Deposit Insurance Corporation  was appointed Receiver          ("Receiver").    Under applicable  federal  law  the Receiver  is          responsible  for winding up the affairs of [name of failed insti-          tution) as quickly as possible.  To achieve this goal the Receiv-          er has the right,  pursuant to 12 U.S.C.   1821(e),  to disaffirm          contractual obligations of the failed institution.          The  purpose of  this  letter is  to  advise-you [sic]  that  the          Receiver has elected to disaffirm the above-referenced contract.          * Arrangements may  be made  to pick up  any leased equipment  by          contacting (Name) at (telephone number).          If  you  believe that  you have  any  claim against  the Receiver          resulting  from this action, you  may file a  proof of claim with          the  Receiver, using  the  enclosed form,  and the  Receiver must          receive it  on or  before [90  days] from  the date  or post-mark          [sic]  of this letter, whichever is later.   If your claim is for          more  than $500,  your  claim form  must be  signed and  sworn to          before a Notary  Public.  YOUR FAILURE TO  TIMELY FILE YOUR CLAIM          ON  OR BEFORE [90 days] FROM THE  DATE OR POST-MARK [SIC] OF THIS          LETTER, WHICHEVER  IS LATER, WILL  RESULT IN THE  DISALLOWANCE OF          YOUR CLAIM.          Please mail your Proof of Claim form to:                                     Claims Agent                                          iv                        Federal Deposit Insurance Corporation                        Receiver of Name of Failed Institution                                    __________________________                      c/o Federal Deposit Insurance Corporation                                       Address                                       _______                                 City State, Zip Code                                 ____________________          Or  you may hand-deliver your  Proof of Claim  form to the Claims          Agent at the  address stated  herein between 8:00  a.m. and  5:00          p.m. on weekdays (excluding federal holidays).          Your  Proof of Claim form must be POSTMARKED OR HAND-DELIVERED TO                                            _______________________________          (AND RECEIVED BY) the  Receiver on or  before the [90 days]  from          _________________          the date or post-mark [sic] of this letter, whichever is later.          Upon receipt  of your claim, the  Receiver has up to  180 days to          review and determine whether to allow or disallow your claim.  If          the  Receiver notifies you of the disallowance of your claim, and          you wish to seek a judicial determination of your claim, you must          file suit (or  continue any  prior pending suit)  on your  claim,          within 60  days after the  later of the  date or postmark  of any          _________________________________________________________________          notice of disallowance,  in the United States  District Court for          ______________________          the district in which [name of financial institution]'s principal          place  of business was located  or in the  United States District          Court for the District of Columbia or your claim will be barred.          You are  further advised that if  you do not receive  a notice of          disallowance of your claim within 180 days of its filing with the          Receiver and the Receiver and you have not agreed, in writing, to          extend the  initial 180 day determination period, your claim will          be  deemed disallowed, pursuant to 12 U.S.C.   1821(d)(6)(A).  If          this occurs and you wish to file suit on your claim  to obtain de          novo adjudication, you must  file your suit within 60  days after          the expiration  of the 180  day period in the  United States Dis-          trict Court for the district in which [name of financial institu-          tion]'s  principal place of business was located or in the United          States  District Court for the District of Columbia or your claim          will be barred.          The statutory provisions governing  this claims process are found          in section 1821(d)(3)-(13) of Title 12 of the United States Code.          If  you  have any  questions  please  contact  [contact name]  at          [contact phone number].          Very truly yours,          Name          Title          Federal Deposit Insurance Corporation,          as Receiver for [name of financial institution]          (Refer to site policy for signature guidelines)                                          v          cc:  Refer to site policy for copy distribution guidelines.               *(Use only if applicable)          Revised Exhibit G.   FDIC-DAS Settlement Procedures Manual Sample          Disaffirmance on Prepaid Contract Letter          Certified Mail          Return Receipt Requested                                         Date          Name          Address          City, State Zip Code          Subject:  FIN #, Name of Closed Financial Institution                    City, State - In Receivership                    Account # (Reference, etc.)                    CONTRACT   DISAFFIRMANCE  AND  REQUEST  FOR  RETURN  OF          PREPAID        FUNDS                         _____          To Whom It May Concern:          On [date  of appointment]  the [name of  failed institution],  in          [city  and state], was closed  by the [supervisory authority] and          the Federal Deposit Insurance Corporation  was appointed Receiver          ("Receiver").    Under applicable  federal  law  the Receiver  is          responsible  for winding up the affairs of [name of failed insti-          tution] as quickly as possible.  To achieve this goal the Receiv-          er has the right, pursuant to  12 U.S.C.   1821(e), to  disaffirm          contractual obligations of the failed institution.          The purpose of this letter is to advise you that the Receiver has          elected to disaffirm the above-referenced contract.          An examination of your prepaid  contract revealed that there  are              unused  days remaining from the date of this notice until the          ___          expiration of said contract.  The number of days multiplied by $                                                                           _          per day, would indicate a credit of $    .  It is requested  that                                               ____          you  forward a  check made  payable to the  FDIC, as  Receiver of          (Name of  closed Financial  Institution), for the  aforementioned          credit to:                        Federal Deposit Insurance Corporation                        Receiver of Name of Failed Institution                                    __________________________                      c/o Federal Deposit Insurance Corporation                                       Address                                       _______                                 City, State Zip Code                                 ____________________                                  Attention:  [Name]          *Arrangements  may be  made to  pick up  any leased  equipment by          contacting (Name) at (telephone number).                                          vi          If  you  believe that  you have  any  claim against  the Receiver          resulting from  this action, you may  file a proof  of claim with          the  Receiver, using  the enclosed  form, and  the Receiver  must          receive it  on or  before [90  days] from  the date  or post-mark          [sic] of this  letter, whichever is later.  If  your claim is for          more than  $500, your  claim  form must  be signed  and sworn  to          before a Notary Public.   YOUR FAILURE TO TIMELY  FILE YOUR CLAIM          ON OR BEFORE  [90 days] FROM THE DATE OR  POST-MARK [sic] OF THIS          LETTER,  WHICHEVER IS LATER,  WILL RESULT IN  THE DISALLOWANCE OF          YOUR CLAIM.          Please mail your Proof of Claim form to:                                     Claims Agent                        Federal Deposit Insurance Corporation                        Receiver of Name of Failed Institution                                    __________________________                      c/o Federal Deposit Insurance Corporation                                       Address                                       _______                                 City State, Zip Code                                 ____________________          Or you may  hand-deliver your Proof of  Claim form to the  Claims          Agent at the  address stated  herein between 8:00  a.m. and  5:00          p.m. on weekdays (excluding federal holidays).          Your  Proof of Claim form must be POSTMARKED OR HAND-DELIVERED TO                                            _______________________________          (AND RECEIVED  BY) the Receiver on  or before the [90  days] from          _________________          the date or post-mark [sic] of this letter, whichever is later.          Upon receipt  of your claim, the  Receiver has up to  180 days to          review and determine whether to allow or disallow your claim.  If          the  Receiver notifies you of the disallowance of your claim, and          you wish to seek a judicial determination of your claim, you must          file suit (or  continue any  prior pending suit)  on your  claim,          within 60 days  after the later  of the date  or postmark of  any          _________________________________________________________________          notice of disallowance,  in the United States  District Court for          ______________________          the district in which [name of financial institution]'s principal          place  of business was located  or in the  United States District          Court for the District of Columbia or your claim will be barred.          You are  further advised that if  you do not receive  a notice of          disallowance of your claim within 180 days of its filing with the          Receiver and the Receiver and you have not agreed, in writing, to          extend the initial  180 day determination period, your claim will          be  deemed disallowed, pursuant to 12 U.S.C.   1821(d)(6)(A).  If          this occurs and  you wish to file suit on your claim to obtain de          novo adjudication, you must  file your suit within 60  days after          the expiration of the  180 day period in  the United States  Dis-          trict Court for the district in which [name of financial institu-          tion]'s  principal place of business was located or in the United          States  District Court for the District of Columbia or your claim          will be barred.                                         vii          The statutory provisions governing  this claims process are found          in section 1821(d)(3)-(13) of Title 12 of the United States Code.          If  you  have  any questions  please  contact  [contact name]  at          [contact phone number].          Very truly yours          Name          Title          Federal Deposit Insurance Corporation,          as Receiver for [name of financial institution]          (Refer to site policy for signature guidelines)          cc:    Refer to  site  policy for  copy  distribution guidelines.          *(Use     only if applicable)          *(Use only if applicable)                                         viii
