                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


              Argued October 21, 1997 Decided December 19, 1997 


                                 No. 96-5343


                         Auction Company of America, 

                                  Appellant


                                      v.


          Federal Deposit Insurance Corporation, as Manager of the 

                        FSLIC Resolution Trust Fund, 

                                   Appellee


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 94cv02006)


     Alan M. Grayson argued the cause and filed the briefs for 
appellant.

     J. Scott Watson, Counsel, Federal Deposit Insurance Cor-
poration, argued the cause for appellee.  With him on the 
brief were Ann S. DuRoss, Assistant General Counsel, Fed-
eral Deposit Insurance Corporation, Robert D. McGillicuddy, 



Senior Counsel, Roberta H. Clark, Counsel, Federal Deposit 
Insurance Corporation, and Robert P. Fletcher.

     Before:  Wald, Williams and Rogers, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Williams.

     Williams, Circuit Judge:  Auction Company of America 
("Auction Company") seeks damages for breach of contract 
from the Federal Deposit Insurance Company ("FDIC") as 
statutory successor to the Resolution Trust Corporation 
("RTC").  It filed the first of three suits (and the one both 
parties regard as controlling for limitations purposes) four 
years and one day after the cause of action accrued.  The 
filing was too late under the District of Columbia's three-year 
limitations period for contract actions, 12 D.C. Code s 301(7), 
but timely under either the general six-year limitations period 
for civil actions against the United States, 28 U.S.C. 
s 2401(a), or the Missouri five-year contract limitations peri-
od, Mo. Ann. Stat. s 516.120(1).  The district court ruled that 
the federal statute did not govern and performed a choice-of-
law analysis to arrive at the D.C. limitations period.  It thus 
dismissed the complaint.  Because we find that the federal 
statute does apply, we reverse and remand without reaching 
the state choice-of-law issue.

 


                                  *   *   *


     Auction Company's claim is that it entered into a contract 
with the RTC, as receiver for certain failed thrifts, to auction 
off key thrift assets.  On September 18, 1990, after a number 
of actions that according to Auction Company impeded its 
efforts to organize the auction, the RTC terminated the 
contract and thereby breached it.  Four years and one day 
later, on September 19, 1994, Auction Company filed its first 
complaint.

     That complaint's caption named the RTC as defendant, but 
also said that the suit was against the RTC in its corporate 
capacity ("RTC-Corporate").  The RTC responded with a 
motion to dismiss, arguing that it was a legal entity distinct 
from the RTC as Receiver and could not be sued for contrac-
tual liabilities of the RTC as Receiver.  In briefing the motion 



it also asserted that the statutory provisions for administra-
tive determination of claims against depository institutions, 
see 12 U.S.C. s 1821(d)(3)-(13), imposed an exhaustion re-
quirement on Auction Company's contract claim.  On June 
15, 1995, Auction Company submitted its claim for adminis-
trative determination by the RTC as Receiver, but at the 
same time protested that its contract action ran against the 
RTC, not against a depository institution, and was therefore 
not subject to the administrative claim allowance procedures.

     12 U.S.C. s 1821(d)(5) requires the RTC as Receiver to 
allow or disallow claims within 180 days.  Without waiting for 
the end of this period, Auction Company filed a second suit on 
October 4, 1995.  This complaint named the RTC as Receiver 
as defendant but was in other respects identical to the first.  
The RTC as Receiver moved to dismiss on the grounds that 
Auction Company had not exhausted its administrative reme-
dies.  On February 9, 1996, following the disallowance of its 
claim by RTC as Receiver, Auction Company filed its third 
suit.  By this time the RTC no longer existed;  its authorizing 
statute provided for termination on December 31, 1995.  See 
12 U.S.C. s 1441a(m)(1).  The FDIC, its statutory successor, 
was named as defendant in the third suit and was substituted 
into the first two.  We do not believe this substitution affects 
our analysis, and we will limit our focus to the FDIC.

     All three actions were consolidated before the district 
court.  The FDIC moved for judgment on the pleadings 
under Rule 12(c), seeking dismissal on the grounds that the 
District of Columbia three-year statute of limitations for 
contracts applied.  Auction Company suggested instead the 
six-year limitations period for civil actions against the United 
States.  See 28 U.S.C. s 2401(a).  Alternatively, it noted that 
the contract at issue contained a choice-of-law clause selecting 
Missouri law, and argued that the Missouri statute of limita-
tions should govern.  The district court, treating the 12(c) 
motion as "essentially" one to dismiss under 12(b)(6), ruled 
that the FDIC was not "the United States" for the purposes 
of 28 U.S.C. s 2401(a).  It thus proceeded to pick between 
the D.C. and the Missouri statutes of limitation.  Reviewing 
de novo, we find error in the first determination and stop at 



that juncture:  Section 2401(a) does apply, and Auction Com-
pany's suits were timely.

 


                                  *   *   *


     28 U.S.C s 2401(a) provides that "every civil action com-
menced against the United States shall be barred unless the 
complaint is filed within six years after the right of action 
first accrues."  The question for this appeal, broadly stated, is 
whether the FDIC counts as the United States for the 
purposes of this provision.  The district court was impressed 
by O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994), which 
contains the striking phrase "the FDIC is not the United 
States," id. at 85.  But as the O'Melveny Court was not 
interpreting 28 U.S.C. s 2401(a), or indeed any other federal 
statute, this language cannot be controlling.  Whether the 
FDIC should be treated as the United States depends on the 
context.  See FDIC v. Hartford Ins. Co. of Ill., 877 F.2d 590, 
592-93 (7th Cir. 1989).

     In O'Melveny the FDIC as Receiver sued the counsel of a 
failed savings and loan for malpractice and breach of fiduciary 
duty in failing to expose frauds in the management of the 
S&L.  The lawyers defended on the grounds that the man-
agement was fully aware of its own frauds, and that knowl-
edge of those frauds must therefore be imputed to the S&L, 
and thence to the FDIC as Receiver.  The argument was a 
possible winner for the lawyers under California's imputation 
law, but the FDIC argued that state law should be displaced 
by federal common law.  Immediately after the Court's decla-
ration that the FDIC was not the United States, it twice 
discounted the significance of the remark, noting that:  (1) 
even if the FDIC were the United States it would be begging 
the question to assume that it was asserting its own rights 
rather than those of the S&L;  and (2) even if federal law 
governed in the sense explained in United States v. Kimbell 
Foods, Inc., 440 U.S. 715, 726 (1979), i.e., a sense that 
includes federal adoption of state law rules, that would "not 
much advance the ball."  The Court decided that state law 
should apply:  "[T]his is not one of those extraordinary cases 
in which the judicial creation of a federal rule of decision is 
warranted."  O'Melveny, 512 U.S. at 89.



     Creating federal common law is one thing, applying a 
federal statute quite another.  State law will generally fill the 
gaps in a comprehensive federal statutory scheme such as the 
FDIC's enabling legislation, but it will not do so to the 
exclusion of another applicable federal statute.  See id. at 85.  
If s 2401(a) applies, it does so by its own terms, so long as 
not contradicted by some other federal statute, not by virtue 
of any lawmaking power of federal courts.  On the question of 
the scope of "United States" in s 2401(a), O'Melveny provides 
no guidance.

     So we turn to the statute itself.  Section 2401(a) originated 
as the internal limitations period for the Little Tucker Act. 
See Christensen v. United States, 755 F.2d 705, 707 (9th Cir. 
1985);  Saffron v. Dep't of the Navy, 561 F.2d 938, 944-45 
(D.C. Cir. 1977).  That act and its big brother the Tucker Act 
collectively establish jurisdiction and a waiver of sovereign 
immunity for certain cases that are "against the United 
States" and founded upon various bases including "any ex-
press or implied contract with the United States."  For 
contract cases, the Little Tucker Act gives the district courts 
jurisdiction, concurrent with the Court of Federal Claims, if 
the amount sought is less than $10,000.  If more than $10,000 
is at issue, the suits lie only in the Court of Federal Claims 
under the Tucker Act proper.  See 28 U.S.C. s 1346(a)(2);  28 
U.S.C. s 1491;  see also Saffron, 561 F.2d at 944.  In the 1946 
U.S. Code, the Little Tucker Act was located at 28 U.S.C. 
s 41(20), which provided in part, "No suit against the Govern-
ment of the United States shall be allowed under this para-
graph unless the same shall have been brought within six 
years after the right accrued for which the claim is made."  
The Act of June 25, 1948 made minor changes in the wording 
and relocated this language to 28 U.S.C. s 2401(a), where it 
was to function as a catch-all limit for non-tort actions against 
the United States.

     While this shuffle expanded the function of s 2401(a), see, 
e.g., Daingerfield Island Protective Society v. Babbitt, 40 
F.3d 442, 445 (D.C. Cir. 1994) (applying s 2401(a) to APA 
suit);  Impro Products v. Block, 722 F.2d 845, 850 n.8 (D.C. 
Cir. 1983) (same), the section remained applicable as ever to 
Little Tucker Act suits.  See, e.g., Loudner v. United States, 
108 F.3d 896, 900 (8th Cir. 1997).  Thus, barring some 



exceptional statutory twist, the term "United States" must 
have the same meaning in s 2401(a) as in the Little Tucker 
Act.  And hence if the FDIC as Receiver is the United States 
for the Little Tucker Act, it must be also for s 2401(a).

     Does the Little Tucker Act treat the FDIC as Receiver as 
the United States?  Jurisdiction over contract claims, under 
either Tucker Act, exists only for contracts "with the United 
States."  If a contract with the FDIC as Receiver supports 
jurisdiction under either Tucker Act, then it counts as a 
contract with the United States, and the FDIC as Receiver 
must be "the United States" for the Tucker Acts.  So the key 
question turns out to be whether a contract with the FDIC as 
Receiver will allow a Tucker Act suit.  If that is so, then the 
equivalent meaning of "United States" in the Little Tucker 
Act and its statute of limitations allows us to conclude that 
the FDIC as Receiver is the United States for the purposes 
of s 2401(a).

     The answer to the question is yes;  the Act may be invoked 
whenever "a federal instrumentality acts within its statutory 
authority to carry out [the government's] purposes" as long 
as no other specific statutory provision bars jurisdiction.  
Butz Engineering Corp. v. United States, 499 F.2d 619, 622 
(Ct. Cl. 1974);  see also L'Enfant Plaza Properties, Inc. v. 
United States, 668 F.2d 1211, 1212 (Ct. Cl. 1982).  The FDIC 
concedes that the FDIC as Receiver is a federal instrumen-
tality;  indeed, eager to argue that it is not an agency, it 
pushes instrumentality status aggressively.  See FDIC Br. at 
9-10.  Doctrinally, the fit is relatively easy, and in fact 
contracts with the FDIC (and the RTC) have occasioned suits 
under the Tucker Act.1  See, e.g., Slattery v. United States, 

__________
     1 These decisions have often been cursory or unclear in their 
treatment of the Receiver/Corporate distinction, but the FDIC 
gives us no persuasive reason why the distinction makes a differ-
ence here.  The RTC as Receiver did not inherit this contract from 
defunct depositories; it entered into the contract in furtherance of 
its statutory mission, and the rights and obligations at issue are its 
rights and obligations, not those of the depositories.  Cf. O'Melve-
ny, 512 U.S. at 85-87 (discussing role of FDIC as Receiver).



35 Fed. Cl. 180 (1996) (FDIC contract); Suess v. United 
States, 33 Fed. Cl. 89 (1995) (Office of Thrift Supervision and 
RTC contracts).  The FDIC has even argued, with some 
initial success, that because it is the United States, it can only 
be sued under the Tucker Act and hence in the Court of 
Federal Claims.  See, e.g., FDIC v. Hulsey, 22 F.3d 1472, 
1480 (10th Cir. 1994) (rejecting argument);  Farha v. FDIC 
963 F.2d 283, 288 (10th Cir. 1992) (accepting argument).

     As the FDIC as Receiver counts as the United States for 
the Tucker Act, it does so for the Tucker Act (and general 
federal) statute of limitations.  The FDIC appears to take 
refuge in the idea that the captioning of the lawsuit somehow 
outweighs the functional identity of the United States and its 
instrumentalities for the purposes of s 2401(a).  But that 
argument has been overwhelmingly rejected, by this circuit 
and others, in the specific context of the application of 
s 2401(a).  See, e.g., Mason v. Judges of the U.S. Court of 
Appeals for D.C., 952 F.2d 423, 425 (D.C. Cir. 1991) ("[A] civil 
action against a federal official based on that person's official 
actions is 'a civil action commenced against the United States' 
under s 2401(a).");  Blassingame v. Secretary of the Navy, 
811 F.2d 65, 70 (2d Cir. 1987) (discarding "fiction that an 
action alleging unlawful conduct by a federal official ... and 
an agency, is not an action against the United States");  
Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985) (same);  
Oppenheim v. Campbell, 571 F.2d 660 (D.C. Cir. 1978) (Civil 
Service Commission is United States for s 2401(a));  see also 
Hartford Insurance, 877 F.2d at 592 (in finding statute 
assigning venue for certain cases against the FDIC as receiv-
er of national banking associations applicable even though 
claimant captioned case as against the United States, asks 
rhetorically, "What is 'the Federal Deposit Insurance Com-
mission as receiver' other than part of the United States?");  
Portsmouth Redevelopment and Housing Auth. v. Pierce, 706 
F.2d 471, 473 (4th Cir. 1983) (discussing conditions under 
which action against federal agency is against United States).  
In the context of the Administrative Procedure Act, to which 
s 2401(a) applies, see Sierra Club v. Slater, 120 F.3d 623, 631 
(6th Cir. 1997);  Daingerfield, 40 F.3d at 445, the statute's 
words reject the FDIC's approach:  in authorizing suits for 
judicial review, it lumps together suits "against the United 



States, the agency by its official title, or the appropriate 
officer."  5 U.S.C. s 703.

 


                                  *   *   *


     This is not a Tucker Act suit, however, nor one under the 
APA.  The FDIC could have argued, though it did not, that 
what distinguishes a suit against an agency from a suit 
against the United States is not the captioning of the com-
plaint but the operative waiver of immunity.  Section 2401(a), 
of course, is not limited to suits brought under the Tucker Act 
or the APA, but the FDIC could have argued that waiver 
under a sue-or-be-sued clause is different.  Such a clause, the 
argument would go, lifts the immunity of only the agency, not 
the United States (assuming that that makes sense), and a 
suit in district court based on such a clause is accordingly not 
against the United States, even if the Tucker Act provides 
alternative Court of Federal Claims jurisdiction.  The parties 
disagree about the source of district court jurisdiction here, 
and one likely reason the FDIC did not make this argument 
is that its brief locates the basis for jurisdiction in the district 
court's ability to review administrative disallowances of claims 
against depositories.2

     The FDIC's theory of jurisdiction, however, is wrong.  As 
we observed earlier, supra n.1, Auction Company is not suing 
to enforce a contract with a defunct depository but to enforce 
one made initially and exclusively with the RTC.  According-
ly, we examine this alternative argument on the basis of 
Auction Company's jurisdictional theory.  Auction Company 
finds a waiver of sovereign immunity in FDIC's enabling 
legislation, the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989 ("FIRREA"), which empowers it to 
sue and be sued "in any court of law or equity, State or 
Federal."  12 U.S.C. s 1819(a) Fourth; see also United 
States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (such 

__________
     2 We address this argument despite the FDIC's failure to raise it 
because, in some guises, it has jurisdictional overtones.  See, e.g., 
Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 
56 (2d Cir. 1985) (source of funds to pay judgment is jurisdictional 
issue).



clauses are broad waivers of immunity).  And Auction Com-
pany finds subject matter jurisdiction in FIRREA's "deemer" 
clause, 12 U.S.C. s 1819(b)(2)(A), which provides (with an 
exception not relevant here) that all actions to which the 
FDIC is a party "shall be deemed to arise under the laws of 
the United States."  District courts can thus hear these 
actions as part of the "arising under" jurisdiction granted by 
28 U.S.C. s 1331.  See Osborn v. Bank of the United States, 
22 U.S. (9 Wheat) 738 (1824); Williams v. Federal Land 
Bank of Jackson, 954 F.2d 774, 776 (D.C. Cir. 1992).

     The FDIC's argument, given these propositions, would be 
that when an agency is sued in its own name pursuant to a 
sue-or-be-sued clause, recovery is limited to funds within the 
agency's control, and the suit is not against the United States.  
A suit is against the United States, the argument goes, only if 
recovery would come from general Treasury funds.  This 
position finds some support in the case law, beginning with 
suits against the Department of Housing and Urban Develop-
ment but now reaching the FDIC and other agencies.  See, 
e.g., Licata v. United States Postal Service, 33 F.3d 259, 262 
(3d Cir. 1994) (claim against Postal Service in its own name is 
not a claim against the United States);  Far West Federal 
Bank v. Director, Office of Thrift Supervision, 930 F.2d 883, 
890 (Fed. Cir. 1991) (same with respect to FDIC);  Falls 
Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 
55 (2d Cir. 1985)(same with respect to HUD);  Industrial 
Indemnity, Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir. 1980) 
(same with respect to HUD).  Cf., e.g., Portsmouth, 706 F.2d 
at 473 (suit against HUD is against United States because 
HUD monies are originally Treasury funds);  Marcus Garvey 
Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 
1126, 1131 (9th Cir. 1979) (same because no separate funds 
identified).

     If we followed the analysis of these decisions, the FDIC 
could make the argument that this suit seeks funds under 
FDIC control and hence is not against the United States, 
pointing perhaps to 12 U.S.C. s 1821a(d), which limits some 
judgments to the assets of the FSLIC Resolution Fund.  See 
Far West, 930 F.2d at 889-90 (finding funds within FDIC's 
control and rejecting Government argument of exclusive 



Claims Court jurisdiction).  But making the argument would 
not even be necessary.  Simply accepting the terms of the 
debate--the notion that suits against the United States and 
suits that may only generate judgments against specific agen-
cy funds are mutually exclusive categories--would spell victo-
ry for the FDIC.  If the suit were against the United States 
(and not the FDIC), sovereign immunity would bar the 
district court from hearing it because the sue-or-be-sued 
clause does not waive the immunity of the United States and 
no other waiver allows district court jurisdiction;  recast as a 
Tucker Act suit, this case would have to be brought in the 
Court of Federal Claims because it demands more than 
$10,000.  If the suit were against the FDIC (and not the 
United States), s 2401(a) could not apply.  Compare Ports-
mouth, 706 F.2d at 473 (finding exclusive Claims Court 
jurisdiction where suit is against U.S.) with Ammcon, Inc. v. 
Kemp, 826 F. Supp. 639, 643-44 (E.D.N.Y. 1993) (finding 
s 2401(a) inapplicable where suit is against HUD).  Because 
we believe this reasoning is fundamentally confused, we avoid 
it entirely and accept neither horn of the dilemma.

     A demonstration of the confusion requires a brief trip into 
the origins of the distinction between suits against the United 
States and those against an agency.  In Federal Housing 
Administration, Region No. 4 v. Burr, 309 U.S. 242 (1940), 
the Supreme Court noted that the statute authorizing suit 
against the Federal Housing Administration specified that 
claims could be paid only from funds made available to the 
agency under that very statute.  Id. at 250.  This of course 
did no more than state the unexceptionable principle that 
Congress, in waiving sovereign immunity for an agency, may 
limit the terms of the waiver.

     As later cases picked up Burr, however, the doctrine 
changed shape.  Marcus Garvey Square, 595 F.2d at 1131, 
restated it as the principle that a suit is against an agency 
only if plaintiffs can point to agency monies to satisfy a 
potential judgment.  If no identifiable fund within the posses-
sion and control of the agency exists, the suit is in reality 
against the United States.  For this proposition, Garvey cited 



Burr and the sovereign immunity classics Dugan v. Rank, 
372 U.S. 609, 620 (1963), and Land v. Dollar, 330 U.S. 731, 
738 (1947).  The Garvey court concluded that because no such 
fund could be found, Claims Court jurisdiction was exclusive 
despite a sue-or-be-sued clause:  Recovery would be against 
the U.S. and could be had only pursuant to the Tucker Act 
waiver.

     It is at this point that confusion becomes evident.  The 
practical weakness of the idea that recovery of funds within 
an agency's control is not recovery against the United States 
is, we think, well exposed by the Fourth Circuit's observation 
that "[t]he funds appropriated to HUD ... clearly originate 
in the public treasury, and they do not cease to be public 
funds after they are appropriated."  Portsmouth, 706 F.2d at 
473-74.  Cf. Kauffman v. Anglo-American School of Sofia, 
28 F.3d 1223, 1227-28 (D.C. Cir. 1994) ("[D]iversion of re-
sources from a private entity created to advance federal 
interests has effects similar to those of diversion of resources 
directly from the Treasury.").3

     The logical fallacy is just as clear.  To ascertain whether a 
suit is against the United States, rather than a federal 
agency, the Marcus Garvey court and similar cases have 
turned to the test enunciated in Dugan and Land.  See, e.g., 
Portsmouth, 706 F.2d at 473 (citing Dugan);  Industrial 
Indemnity, 615 F.2d at 646 (citing both);  Marcus Garvey, 
595 F.2d at 1131 (citing both).  But this test was designed to 

__________
     3 The effects are similar because, regardless of the origin of the 
funds, their loss forces the Government "to choose between allowing 
its interests to be served less well and spending more money to 
make up the shortfall."  Kauffman, 28 F.3d at 1227.  It may 
sometimes be true, of course, that enough claims have already been 
allowed against a discrete fund to exhaust it, so that allowing a new 
claim will change the distribution to claimants but have no other 
effect on governmental interests.  That might occur where the 
FDIC is merely determining claims that accrued against a deposito-
ry institution before the FDIC's appointment as receiver, and will 
use only the institution's assets to satisfy the claims pro rata.  As 
discussed in note 1, supra, this case is different.



distinguish suits against private individuals from ones 
against the sovereign; it identifies those cases in which 
sovereign immunity vel non exists.  See Dugan, 372 U.S. at 
620;  Land, 330 U.S. at 738.  Federal agencies or instrumen-
talities performing federal functions always fall on the "sover-
eign" side of that fault line; that is why they possess immuni-
ty that requires waiver.  To say that suits against agencies 
are not against the United States in that sense is simply 
wrong; to say that they are against the United States and not 
the agency is to make "sue-or-be-sued" clauses nullities.  The 
idea that the Dugan test may be used to draw two different 
lines--the line between suits against the United States and 
ones against private persons, and the line between suits 
against the United States and ones against its agencies--is 
confused at its core and we reject it.4  The source of funds for 
any recovery in this case may become an issue, but it is not 
jurisdictional and does not bear on whether a suit against the 
FDIC as Receiver is a suit against the United States for 
purposes of s 2401(a).

 


                                  *   *   *


     So we find the argument the FDIC did not make no more 
persuasive than the one it did.  Focusing on the waiver of 
immunity is valuable, however, because it permits a deeper 
understanding of the nature of s 2401(a) and discloses a 
functional rationale for its application that is perhaps more 
satisfying than its historical origins in the Tucker Act.  As a 
consequence of the different waivers of immunity available, 
plaintiffs suing the FDIC have a fairly wide choice of forum, 

__________
     4 Distinguishing between suits against agencies and those against 
the United States would frequently be necessary if Tucker Act 
jurisdiction were preemptive--that is, if Tucker Act jurisdiction by 
its mere existence barred jurisdiction granted by another statute.  
It does not.  If a separate waiver of sovereign immunity and grant 
of jurisdiction exist, district courts may hear cases over which, 
under the Tucker Act alone, the Court of Federal Claims would 
have exclusive jurisdiction.  See Bowen v. Massachusetts, 487 U.S. 
879, 910 n.48 (1988); First Virginia Bank v. Randolph, 110 F.3d 75, 
77 (D.C. Cir. 1997).



at least if they sue in contract.5  They may bring suit in the 
Court of Federal Claims, if they have a Tucker Act suit for 
more than $10,000; they may bring a Tucker Act suit for a 
lesser amount in either the Court of Federal Claims or a 
district court; and they may sue in any court of law or equity 
under the FDIC sue-or-be-sued clause.  The question of 
whether to apply 28 U.S.C. s 2401(a) comes down to whether 
a specific limitations period is somehow tied to the choice of 
forum.

     According to the FDIC, it should be:  A suit under the sue-
or-be-sued clause, naming the FDIC as Receiver, should be 
subject to the appropriate state statute of limitations.  A 
Tucker Act suit naming the United States should be subject 
to s 2401(a).  What to do with a Tucker Act suit that does 
not name the United States as defendant (a small but non-
empty class, see, e.g., Kline v. Cisneros, 76 F.3d 1236 (D.C. 
Cir. 1996);  cf. Optiperu v. Overseas Private Investment Cor-
poration, 640 F.Supp. 420, 421 (D.D.C. 1986)), is unclear.  
This sort of approach might make some sense if the Tucker 
Act and the sue-or-be-sued clause provided distinct causes of 
action.  What each provides, however, is simply a waiver of 
sovereign immunity; the causes of action will be based on the 
contracts at issue.  Accordingly, we can see no basis for tying 
the limitations period to the source of jurisdiction.

     More specifically, s 2401(a) represents Congress's general 
qualification--on the limitations issue--of its consent to suit 
against the United States.  See Saffron, 561 F.2d at 941.  To 
conclude that it applies, we need only find that the waiver 
contained in FIRREA's sue-or-be-sued clause did not displace 
it and thereby install whatever state law might fill the gap.  
This we have no difficulty doing;  the FIRREA sue-or-be-
sued clause does not usually operate to the exclusion of other 
federal statutes.  See Meyer, 510 U.S. at 476.  "The courts 
are not at liberty to pick and choose among congressional 
enactments, and when two statutes are capable of co-

__________
     5 Tort claims are different; the Federal Tort Claims Act provides 
the exclusive avenue for relief where it applies.  See 28 U.S.C. 
s 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994).



existence, it is the duty of the courts, absent a clearly 
expressed congressional intention to the contrary, to regard 
each as effective."  Morton v. Mancari, 417 U.S. 535, 551 
(1974).  The judgment of the district court is reversed and 
the case is remanded for further proceedings consistent with 
this opinion.

So ordered.


 
