
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1230                     FDIC, FEDERAL DEPOSIT INSURANCE CORPORATION                        AS RECEIVER OF VANGUARD SAVINGS BANK,                                Plaintiff, Appellant,                                          v.                     PAUL KEATING, INDIVIDUALLY; PAUL F. KEATING                  AS TRUSTEE OF THE PJ THREE REALTY TRUST AND OF THE                   FOUR "K" TRUST; LUCILLE SAMSON AS TRUSTEE OF THE                      KELLOGG REALTY TRUST; LUCILLE SAMSON AND                          PAULA J. KEATING AS TRUSTEES OF THE                          111 ALLEN AVENUE REALTY TRUST; AND                         VICTORIA MUTUAL LIMITED PARTNERSHIP,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Rosenn,* Senior Circuit Judge,                                     ____________________                         and Campbell, Senior Circuit Judge.                                       ____________________                                 ____________________            Daniel  H. Kurtenbach, with whom Ann S.  Duross, Assistant General            _____________________            ______________        Counsel and  Richard J. Osterman,  Jr., Senior Counsel, were  on brief                     _________________________        for appellant.            Philip D. Moran for appellees.            _______________                                 ____________________                                  December 29, 1993                                 ____________________        ____________________        *Of the Third Circuit, sitting by designation.                      Per  Curiam.   In this  appeal, plaintiff-appellant                      ___________            Federal Deposit Insurance Corporation (FDIC) asserts that the            district court  erred when  it  determined that  12 U.S.C.               1819(b)(2)(B) (1988 &  Supp. IV 1992) does  not allow removal            of a state court proceeding to federal district  court during            the pendency of a state appeal and after the window for post-            judgment relief has closed.   See generally FDIC v.  Keating,                                          ___ _________ ____     _______            812 F. Supp. 8 (D. Mass. 1993).  We reverse and remand.                                           I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On  February   15,  1990,  Vanguard   Savings  Bank            (Vanguard)  filed suit  in Massachusetts state  court against            Paul F. Keating and several other individuals and entities to            collect on  a  promissory  note  signed by  Keating.    After            Vanguard  foreclosed on the  property securing the  note, the            case was  tried and,  on November 18,  1991, the  state court            entered a deficiency judgment.   The parties did not file any            motions  for post-judgment  relief.   On  December 11,  1991,            defendants nevertheless filed a notice of appeal.                      On   March  27,   1992,   the  Massachusetts   bank            commissioner declared Vanguard  insolvent.  On May  13, 1992,            the FDIC,  having been  confirmed as  liquidating agent,  was            substituted   into  the  state  court  case  as  receiver  of            Vanguard.   On August 10,  1992, the FDIC timely  removed the                                         -2-                                          2            case to the United States  District Court for the District of            Massachusetts.  See 12 U.S.C.   1819(b)(2)(B).                             ___                      Because no  motions for  post-judgment relief  were            pending  (nor were  any filed  after  removal), the  district            court  found itself  in the  somewhat  anomalous position  of            receiving a case that was  solely appellate in nature.  After            a   hearing  at  which  the  district  court  questioned  its            jurisdiction over the case, the court remanded the proceeding            to state court.   Relying on  the dissent in In  re Meyerland                                                         ________________            Co., 960  F.2d 512, 522-26  (5th Cir. 1992) (en  banc), cert.            ___                                                     _____            denied, 113 S.  Ct. 967 (1993), the district  court held that            ______            12 U.S.C.   1819(b)(2)(B) does not allow removal when a state            appeal  is pending.   The  court  further held  that, in  any            event, it lacked jurisdiction because (1) the time for filing            post-judgment motions under  both state and federal  rules of            procedure   had   elapsed;1    (2)   the   court's   original                                            ____________________            1.  The  district court's  finding on  the  unavailability of            post-judgment  relief  is  not challenged  on  appeal  and we            therefore decline to review this  aspect of its decision.  We            note,  however, that  at least  two  circuits have  suggested            that,  even if  post-judgment relief  is  no longer  possible            under state procedural rules, the time period for such relief            under the federal rules  begins on the date of removal.   See                                                                      ___            Jackson v. American Sav. Mortgage  Corp., 924 F.2d 195, 199 &            _______    _____________________________            n.9  (11th  Cir.  1991) ("[E]ven  if  state  procedural rules            contain a Rule 59-type motion . . . and removal occurs during            the running  of the time for such a  motion or after the time            for such a motion has run, a  party would still have ten days            after removal  to file a  Rule 59 motion in  federal district            court."); Resolution Trust  Corp. v. Nernberg, 3 F.3d  62, 68                      _______________________    ________            (3d Cir.  1993) (noting  similarity between Resolution  Trust            and  FDIC removal statutes and establishing circuit rule that            "[i]n all cases removed to the district  court after judgment                                         -3-                                          3            jurisdiction  does not  include mere  processing  of a  state            judgment for federal appeal; and  (3) a district court cannot            exercise appellate  jurisdiction  over a  state trial  court.            Pursuant to  12 U.S.C.    1819(b)(2)(C) (Supp. IV  1992), the            FDIC brought this appeal.  See Demars v. First Serv. Bank for                                       ___ ______    ____________________            Sav., 907  F.2d  1237,  1241 (1st  Cir.  1990)  (noting  that            ____            section  1819(b)(2)(C) creates  an exception  to the  general            rule against appellate review of remand orders).                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Our review of a district court's interpretation  of            a  statute, a  pure  question  of  law, is  plenary;  however            reasonable  the district  court's decision,  we  are free  to            exercise  our independent  judgment.   See  United States  v.                                                   ___  _____________            Barker  Steel Co.,  Inc., 985  F.2d 1123,  1125-26  (1st Cir.            ________________________            1993).  In so doing, we must first decide whether 12 U.S.C.              1819(b)(2)(B) permits  removal  of cases  already  tried  and            awaiting  appeal  in  state  court.   If  so,  we  must  then            determine  the proper role  of the district  court when post-            judgment relief is no longer available.                      1.  Removal                      1.  Removal                      ___________                                            ____________________            has been  entered by a  state court, the parties  may, within            thirty  days of the date the case is docketed in the district            court,  file   motions  to   alter,  modify,   or  open   the            judgment.").                                         -4-                                          4                      Both  the plain language of the statute and circuit            precedent  support removal in this case.  Congress authorized            the FDIC  to "remove  any action, suit  or proceeding  from a            State court to  the appropriate United States  district court            before the end of the 90-day period beginning on the date the            action, suit, or  proceeding is filed  against the [FDIC]  or            the  [FDIC]  is  substituted  as  a  party."    12  U.S.C.               1819(b)(2)(B).   While post-judgment  removal may not  be the            statutory  norm, Congress  did  not  limit  removal  in  this            instance to any particular phase of a state court proceeding.            Cf. 12 U.S.C.   632 (1988 &  Supp. IV 1992) (limiting removal            ___            by  Federal  Reserve  member  bank  to  "anytime  before  the            trial").  Nor may the  judicial branch impose such a limiting            interpretation  where, as  here,  the  statutory language  is            unambiguous  on its face and  the result is not "demonstrably            at odds  with the  intentions of its  drafters."   Griffin v.                                                               _______            Oceanic  Contractors, Inc.,  458 U.S.  564, 571 (1982).   See            __________________________                                ___            also  Estate  of  Kaw v.  Commissioner,  Me.  Dep't of  Human            ____  _______________     ___________________________________            Servs., 951 F.2d 444, 445 (1st Cir. 1991) ("`When we find the            ______            terms  of   [a]  statute  unambiguous,  judicial  inquiry  is            complete  except  in rare  and  exceptional circumstances.'")            (quoting Rubin v. United States, 449 U.S. 424, 430 (1981) and                     _____    _____________            Paris v. Department of Hous. & Urban Dev., 843 F.2d 561,  569            _____    ________________________________            (1st Cir. 1988)).                                         -5-                                          5                      In  any event, we  believe that the  result in this            case  is  controlled by  our  recent  decision in  Putnam  v.                                                               ______            DeRosa, 963 F.2d 480 (1st  Cir. 1992).  In Putnam, after  the            ______                                     ______            completion of  a state trial  and the filing  of a notice  of            appeal,2 the  National  Credit  Union  Administration  (NCUA)            became conservator for  one of the defendants and removed the            case to federal court.   See id. at 483.  In noting that "[a]                                     ___ ___            special  statute [12 U.S.C.   1789(a)(2) (1988)] gives [NCUA]            the right to bring this appeal in federal court," we also had            occasion to  observe that  section 1789(a)(2)  is similar  to            section 1819(b)(2).  Id.  We continue  to be impressed by the                                 ___            mutual  resemblance of the two removal statutes, and conclude            that section 1819(b)(2)  gives FDIC the right  to remove this            case to federal court.                      Perhaps, as the district court opined, removal of a            state appellate proceeding  is offensive to state  courts and            unnecessary  for  the  achievement  of  legislative   goals.3            Indeed, we are not as  confident as the Eleventh Circuit that            "Congress  itself  has weighed  interests  of federalism  and            comity" in granting appellate removal  power to the FDIC.  In                                                                       __                                            ____________________            2.   Our research confirms that  a state notice of appeal was            filed in  Putnam despite the  omission of this fact  from our                      ______            published opinion in that case.            3.    The type  of reflexive  removal  apparent in  this case            strikes us  as particularly  wasteful of  scant economic  and            judicial  resources.  After  all, the FDIC's  predecessor was            fully victorious at trial and received all the relief sought.                                         -6-                                          6            re  Savers Fed. Sav.  & Loan Ass'n,  872 F.2d 963,  966 (11th            __________________________________            Cir.  1989)  (per curiam)  (analyzing predecessor  to current            FDIC  removal statute).   Nevertheless, Congress  has clearly            stated  in section  1819(b)(2)  that  "any  action,  suit  or            proceeding"  is removable.   Accordingly, we join  with every            other  circuit that has  addressed the statutory  language at            issue in holding that the pendency of a state appeal does not            bar  removal under  12 U.S.C.     1819(b)(2).   Accord In  re                                                            ______ ______            Meyerland Co., 960 F.2d at 517; In re Savers Fed. Sav. & Loan            _____________                   _____________________________            Ass'n, 872 F.2d at 966; cf.  Nernberg, 3 F.3d at 67  (holding            _____                   ___  ________            that 12 U.S.C.   1441a(l)(3)(A)  (Supp. IV 1992), the removal                                   _            statute  for  Resolution  Trust   Corporation,  identical  in            relevant part to  the FDIC removal provision,  allows removal            while  state appeal is  pending); Lester v.  Resolution Trust                                              ______     ________________            Corp., 994 F.2d  1247, 1251-52 (7th Cir. 1993)  (same); In re            _____                                                   _____            5300 Memorial Investors, Ltd., 973 F.2d 1160,  1162 (5th Cir.            _____________________________            1992) (same); Ward v.  Resolution Trust Corp., 972 F.2d  196,                          ____     ______________________            198 (8th Cir. 1992) (similar),  cert. denied, 113 S. Ct. 1412                                            _____ ______            (1993).                      2.  The Role of the District Court                      2.  The Role of the District Court                      __________________________________                      Where, as  in this appeal, post-judgment  relief is            no  longer available,4  the district  court  shall adopt  the                                            ____________________            4.   Without deciding the question, we assume that, following            removal,  a district court could entertain timely motions for            post-judgment relief  despite the  fact that  the trial  took            place  elsewhere.   Cf.  Nernberg,  3  F.3d at  68  (allowing                                ___  ________            district court to accept motions to alter, modify or open the                                         -7-                                          7            decision of the state court as its own, prepare the record as            required  for appeal,  and forward  the case  to the  federal            appeals court for  review.  Accord In re  Meyerland, 960 F.2d                                        ______ ________________            at 520.5                      Echoing the district court's memorandum, defendants            suggest that the minimal nature of this clerical role for the            district   court  indicates  the   absence  of  a   "case  or            controversy,"  a  necessary  predicate  to  the  exercise  of            federal jurisdiction under  Article III of the  Constitution.            See, e.g., Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st            ___  ____  _________________    _________            Cir. 1993).  We find this argument unpersuasive.  Despite the            lack  of  post-judgment  motions for  the  district  court to            decide,  this case  arrives  at  the  federal  doorstep  with            "`questions  presented in an adversary context  and in a form            historically  viewed as  capable  of  resolution through  the            judicial process.'"  Santa Maria v. Owens-Illinois, Inc., 808                                 ___________    ____________________            F.2d 848,  851 n.5 (1st  Cir. 1986) (quoting Flast  v. Cohen,                                                         _____     _____            392 U.S. 83, 95 (1968)).  A contested appeal of a state court            decision  is  clearly  a "case  or  controversy"  amenable to                                            ____________________            state court judgment).            5.   In  theory, a  party need  not file a  second notice  of            appeal in federal court if  the original notice of appeal was            adequate in  the state  court system.   In re  Meyerland, 960                                                    ________________            F.2d  at 520 (citing Granny Goose  Foods, Inc. v. Brotherhood                                 _________________________    ___________            of Teamsters, 415  U.S. 423, 435-36 (1974)).   In practice, a            ____________            party should do  so as filing an additional  notice of appeal            would facilitate the administrative processing of the case in            the federal system.                                         -8-                                          8            judicial  intervention.    The jurisdictional  boundaries  of            Article  III --  which does  not  itself create  distinctions            among the "inferior Courts" to be established by Congress  --            do not  prevent a bona  fide dispute from reaching  a federal            appeals court  simply because  the district  court's role  is            limited by the  awkward posture of a case  removed during the            pendency of a state appeal.                                           III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the foregoing reasons, we reverse the judgment            of the district court, vacate the order remanding the case to            the state  court, and remand  the case to the  district court            for proceedings consistent with this opinion.                      So ordered.                      So ordered                      __________                                         -9-                                          9
