
USCA1 Opinion

	




          September 19, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1509                         SUNSHINE DEVELOPMENT, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION,               AS LIQUIDATING AGENT FOR FIRST SERVICE BANK FOR SAVINGS,                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the  court issued  on  August 22,  1994  is          corrected as follows:               On page 2, line 12   insert period after "reverse"               On page 22, line 5   delete ", 1821(d)(6)"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1509                         SUNSHINE DEVELOPMENT, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION,               AS LIQUIDATING AGENT FOR FIRST SERVICE BANK FOR SAVINGS,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Lagueux,* District Judge.                                          ______________                              _________________________               Gregory E.  Gore, Counsel,  with whom  Ann S.  DuRoss, Ass't               ________________                       ______________          General Counsel, Robert D. McGillicuddy, Senior Counsel, Michelle                           ______________________                  ________          Kosse, Counsel,  Steven A. Solomon,  and Backus, Meyer  & Solomon          _____            _________________       ________________________          were on brief, for appellant.               Dennis G. Bezanson for appellees.               __________________                              _________________________                                   August 22, 1994                              _________________________          __________          *Of the District of Rhode Island, sitting by designation.                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          determine the scope  of the immunity from  injunctions granted to          the  Federal  Deposit  Insurance  Corporation  (FDIC)  under  the          Financial  Institutions Reform, Recovery,  and Enforcement Act of          1989 (FIRREA), Pub.  L. 101-73, 103 Stat. 842 (Aug.  9, 1989), in          the  context  of bankruptcy  proceedings.    After sketching  how          Congress intended  FIRREA to  operate, and clarifying  the source          and  extent of bankruptcy courts' powers to manage the estates of          debtors whose  fates are intertwined  with the affairs  of failed          financial institutions,  we conclude that the  court below lacked          the authority to restrain the FDIC in  the exercise of its lawful          statutory powers.  Accordingly, we reverse.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    The facts essential to  an understanding of this appeal          are not disputed.  Between 1985  and 1988, First Service Bank for          Savings  made  a  total  of  seven  separate  loans  to  Sunshine          Development, Inc. in connection with various  projects, including          Salisbury  Pasture  (Franklin, New  Hampshire),  Brightside Place          (Derry,  New  Hampshire), and  154  Webster  Street (Hudson,  New          Hampshire).  The debt (much of which remains unpaid) is evidenced          by three  promissory notes.   The notes  are cross-collateralized          and  secured  by  mortgages   encumbering  all  three  pieces  of          property.                                          A                                          A                    Neither lender  nor borrower survived  the collapse  of                                          3          the  New England real estate market.   A year after the last loan          had  been made, First Service  was declared insolvent.   On March          31, 1989,  the  FDIC  was  appointed as  liquidating  agent  (and          thereby became the owner  and holder of the notes).   On November          24, 1989, Sunshine petitioned for voluntary reorganization  under          Chapter  11 of the Bankruptcy Code.   The FDIC seasonably filed a          proof of claim in the bankruptcy  court, asserting secured claims          amounting   to  $4,948,203.87.    In  April  of  1991,  the  FDIC          petitioned  the bankruptcy  court for  relief from  the automatic          stay, see 11 U.S.C.   362(d)(1) & (2), so that  it might initiate                ___          foreclosure proceedings  against  the properties.    Among  other          things,  the  FDIC  asserted  that  during  the  prior two  years          Sunshine  had  failed to  pay  required  real  estate  taxes  and          insurance  premiums.   The  bankruptcy court  granted the  FDIC's          petition on July 1, 1991.  No appeal ensued.                    On  July 31, 1992, the  FDIC filed an  amended proof of          claim  in the  bankruptcy  court.   In March  of 1993,  the court          converted  Sunshine's  bankruptcy  into  a  Chapter  7  case  and          appointed a  trustee.1  On  July 20,  1993, the FDIC  amended its          proof of claim once again.  Throughout, the FDIC, for reasons not          illuminated in  the record, abjured  any attempt to  foreclose on          the mortgages that it held.                                          B                                          B                    Prior  to any  insolvency, the  bank and  the developer                                        ____________________               1We  henceforth  refer to  the  debtor  and  its trustee  in          bankruptcy collectively as "Sunshine" or "appellees."                                          4          parted  company.   Each sued the  other.   In one  suit, the bank          sought  to collect principal and interest due under the notes; in          the other, the borrower  sought to recover damages from  the bank          on various lender  liability theories.  These suits, though begun          in 1988, remained  dormant for some time.  In  1991, the district          court consolidated  them  and  eventually  referred  the  ongoing          litigation to the bankruptcy court.                    The  bankruptcy  court  repackaged  the  litigation and          brought it to  a head.  Following a two-week  trial that ended in          May of 1992, a jury not  only decided that Sunshine owed  nothing          to the FDIC as the bank's successor in interest, but also decided          that  Sunshine deserved  $2,000,000 in  damages.   The bankruptcy          court  disagreed.   It  set aside  the  jury verdict  and entered          judgment   in  favor   of   the  FDIC,   against  Sunshine,   for          $2,717,856.12.2    Sunshine appealed  to  the  district court  on          February 12, 1993.  See 28 U.S.C.   158(a).  The appeal (which we                              ___          shall term "the Merits Appeal") is still pending in that court.                                          C                                          C                     The  pot  came to  a boil  when  the FDIC  scheduled a          foreclosure  sale  of all  three  properties  for May  11,  1994.          Alarmed  at the prospect of foreclosure  before the Merits Appeal                                        ____________________               2At trial, the FDIC claimed  that the borrower owed  roughly          $3,951,000.   Sunshine contested a  fraction of the  debt (on the          basis  that  First  Service  failed properly  to  credit  certain          interim  payments),  admitted that  the  remainder  was due,  and          sought  to set off damages allegedly owed on the lender liability          claims  against  the  balance.    The  bankruptcy  court's  award          represents the portion  of the underlying debt that  Sunshine did          not controvert.                                          5          had been decided,3 appellees  petitioned the bankruptcy court for          injunctive  relief to  pretermit the  proposed foreclosure  sale.          For whatever  reason, the bankruptcy court  referred the petition          to the district court.  That court asked a magistrate-judge for a          report  and  recommendation.    See   Fed.  R.  Civ.  P.   72(b).                                          ___          Proceeding on  the mistaken  presumption that the  automatic stay          remained  in  force, the  magistrate  recommended  issuance of  a          temporary restraining order aimed at halting the foreclosure.                    The  FDIC immediately  objected to  the recommendation.          See  id.  It noted  the magistrate's mistake  and again asserted,          ___  ___          citing  FIRREA's  anti-injunction  provision,  that  the district          court  lacked the authority to  grant the requested  relief.  The          district court  held  a  hearing one  day  before  the  scheduled          foreclosure  sale.   In the  course of  the hearing,  the parties          acknowledged the magistrate's bevue and agreed that the automatic          stay had been dissolved almost three years earlier.  The district          judge  nonetheless  enjoined the  FDIC  from  foreclosing on  the          properties  pending determination  of  the Merits  Appeal.4   The          judge did not state the basis for his order.                                        ____________________               3Sunshine  apparently  feared,  inter  alia,  that   if  the                                               _____  ____          properties were sold in foreclosure and it subsequently prevailed          on its  lender liability claims,  it effectively would  have lost          the  right of  setoff, and,  instead, would  be merely  a general          unsecured creditor of the  receivership.  We take no  view either          of  the  legitimacy of  these fears  or  of the  parties' rights,          should they materialize.               4The Merits  Appeal is  pending before a  different district          judge.   At oral argument,  the parties informed  us that it  was          heard and taken under advisement on May 24, 1994.                                          6                                         II.                                         II.                                         ___                                  Standard of Review                                  Standard of Review                                  __________________                    Black  letter  law  in  this   circuit  instructs  that          district  courts ordinarily are  to determine the appropriateness          of granting or denying a preliminary injunction on the basis of a          four-part  test   that  takes  into  account   (1)  the  movant's          likelihood  of  success  on the  merits,  (2)  the potential  for          irreparable injury, (3) a balancing of the relevant equities, and          (4) the effect on  the public interest.  See  Narragansett Indian                                                   ___  ___________________          Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991);  Aoude v. Mobil          _____    ________                                  _____    _____          Oil Corp., 862 F.2d  890, 892 (1st Cir. 1988).   This formulation          _________          can only be used in circumstances in which the district court  is          empowered to issue an injunction.  It is this antecedent question            the question of judicial power, sometimes called "jurisdiction"            that comprises the  centerpiece of this appeal.   Consequently,          while we ordinarily review  a district court's decision  to grant          or deny injunctive relief under a deferential abuse-of-discretion          standard, see,  e.g., Narragansett Indian  Tribe, 934 F.2d  at 5,                    ___   ____  __________________________          this appeal    which presents a pure question of  law   engenders          de  novo review.   See McCarthy v.  Azure, 22 F.3d  351, 354 (1st          __  ____           ___ ________     _____          Cir. 1994); Liberty Mut.  Ins. Co. v. Commercial Union  Ins. Co.,                      ______________________    __________________________          978 F.2d 750, 757  (1st Cir. 1992); see also  Narragansett Indian                                              ________  ___________________          Tribe,  934 F.2d  at  5 (explaining  that  an injunction  may  be          _____          overturned  based on  either "a  mistake of  law or  an  abuse of          discretion").                    The  standard  of  review  is   particularly  important                                          7          because  this  case  has  a  curious  twist.    The  magistrate's          recommendation  was  premised on  a  mistaken  fact, the  parties          explicitly  informed the  district  court of  the error,  and the          court,  though  cognizant  that  the  magistrate's reasoning  was          flawed,   issued  its   own   order  without   any   accompanying          explanation.   Thus,  we are  very  much in  the dark  as to  the          district  court's thinking.    In the  end,  however, it  is  not          necessary that  we remand.   Since we  review the legal  issue de                                                                         __          novo,  access  to  the  district   court's  rationale  is  not  a          ____          prerequisite to appellate  review.5  Withal,  the absence of  any          articulated  reasoning below  as to  this controlling  issue both          increased  the risk of error    an unexplained  ruling being more          likely  to be a poorly considered one    and reduced this court's          (and  the  parties')  opportunities  to benefit  from  the  lower          court's analysis.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                    This case  turns on  the construction and  interplay of          several  provisions of the statutes that define the powers of the          FDIC and the bankruptcy courts,  respectively.  In each instance,          our starting point is the statutory  text.  See United States  v.                                                      ___ _____________                                        ____________________               5We wish to make it crystal clear that we prize the thinking          of the district courts and encourage district judges to state the          basis  for their rulings whether or not they are legally required          to do  so.  While  our review of  legal questions is  de novo, we                                                                __ ____          remain an appellate tribunal with  the function of reviewing what          another court has  already done:   the thinking  and analysis  of          that earlier tribunal   even when, on consideration,  we disagree          with it   is  integral to the judicial process  within which both          courts are engaged.                                          8          Gibbens, ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-2203, slip op.          _______          at 12].                                          A                                          A                    FIRREA   constitutes  a  vital   part  of  the  federal          government's response to the savings-and-loan crisis that  rocked          the nation  in the latter half of the last decade.  The method of          the  statute  involves,   among  other  things,   "establish[ing]          organizations  and  procedures  to   obtain  and  administer  the          necessary funding to  resolve failed thrift cases  and to dispose          of  the assets of [those]  institutions . .  . ."   H.R. Rep. No.          101-54(I),  101st  Cong., 1st  Sess.  (1989),  reprinted in  1989                                                         _________ __          U.S.C.C.A.N.  86,  103.   To  this  end,  FIRREA  gives the  FDIC          unprecedented  powers so that it  may function efficaciously as a          receiver or conservator of insolvent financial institutions.  See                                                                        ___          Telematics  Int'l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 705          _______________________    ___________________          (1st Cir. 1992)  (explaining that FIRREA  is designed to  "enable          the  FDIC  to move  quickly  and  without  undue interruption  to          preserve and consolidate the  assets of the failed institution");          see also 12 U.S.C.   1821(d)(2)(B) (giving the FDIC  wide-ranging          ___ ____          powers  to take  over  the assets  of,  and operate,  an  insured          depository institution  that fails); see generally  H.R. Rep. No.                                               ___ _________          101-54(I), supra, 1989 U.S.C.C.A.N. at 126-29.                     _____                    One  major  component of  the  statutory  scheme is  12          U.S.C.   1821(j).   It states that, with exceptions  not relevant          here, "no court may take any action, except at the request of the          Board  of  Directors [of  the FDIC]  by  regulation or  order, to                                          9          restrain or affect  the exercise  of powers or  functions of  the          [FDIC] as a conservator or a receiver."  Id.  By its terms, then,                                                   ___          section 1821(j) is an anti-injunction  measure, preventing courts          from  issuing orders that unduly inhibit the FDIC in the exercise          of its statutory powers.6                    Since the injunction issued below unabashedly restrains          and affects the FDIC, acting  in its capacity as a  receiver, our          inquiry  reduces to whether the activity that the injunction kept          the  FDIC from  pursuing  falls within  the  FDIC's powers  under          FIRREA.   This inquiry  is  actually composed  of two  subsidiary          questions:  (1) As a general matter, does the FDIC have the power          to foreclose? (2) If so, does  that power extend to the estate of          a bankrupt debtor?                                          B                                          B                    The  answer  to  the first  query  is  patently  in the          affirmative.  Congress  has given  the FDIC  broad authority  "to          take  over  the assets  . .  . and  conduct  all business  of the          institution,"  to  "collect all  obligations  and  money due  the          institution,"  and  to  "preserve  and conserve  the  assets  and          property  of such  institution."   12 U.S.C.    1821(d)(2)(B)(i),          (ii), and  (iv).   As receiver, the  FDIC may "place  the insured                                        ____________________               6Subject  to   enumerated  exceptions,   see  12   U.S.C.                                                           ___          1441a(b)(5),  the  Resolution   Trust  Corporation  (RTC),   when          operating as a receiver,  enjoys the same powers, and  is subject          to  the same FIRREA  protections, as the  FDIC.  See  12 U.S.C.                                                             ___          1441a(b)(4).    Of  particular  interest  here,  section  1821(j)          applies equally  to both agencies.   Consequently, we  will refer          freely to cases involving the RTC to illuminate section 1821(j)'s          reach in respect to the FDIC.                                          10          depository institution in liquidation and proceed to realize upon          the  assets  of  the  institution," 12  U.S.C.     1821(d)(2)(E),          "transfer  any asset  or  liability of  the  institution," id.                                                                        ___          1821(d)(2)(G)(i)(II), and,  in  addition to  the specific  powers          granted under  these statutes,  it may "exercise  such incidental          powers as shall be necessary" to carry out its stated powers, id.                                                                        ___            1821(d)(2)(J)(i).                    Taken  in  the ensemble,  this  broad  array of  powers          easily encompasses the grant  of a general power to  foreclose on          properties that  the failed institution held as  collateral.  See                                                                        ___          Lloyd v. FDIC,  22 F.3d  335, 336 (1st  Cir. 1994)  (interpreting          _____    ____          these  statutes as affording the  FDIC the "power  as receiver to          foreclose on the property  of a debtor"); see also  281-300 Joint                                                    ___ ____  _____________          Venture v. Onion, 938 F.2d  35, 39 (5th Cir. 1991) (holding  that          _______    _____          "the ability of the conservator to foreclose on the property of a          debtor  [is] a  power that  Congress gave  to [agencies  like the          FDIC] under FIRREA"), cert. denied, 112 S. Ct. 933 (1992); Abbott                                _____ ______                         ______          Bldg. Corp. v. United States,  951 F.2d 191, 194 (9th  Cir. 1991)          ___________    _____________          (similar).   Therefore,  in  a run-of-the-mill  case, a  district          court  lacks the authority to enjoin the FDIC, acting lawfully as          a  receiver, from  foreclosing on  security that  it holds.   See                                                                        ___          Lloyd,  22  F.3d at  336-37  (holding that  district  courts lack          _____          jurisdiction  to  enjoin  the  FDIC,  acting  as  receiver,  from          foreclosing on  a debtor's property); Telematics, 967 F.2d at 706                                                __________          (refusing to enjoin the FDIC from foreclosing on a certificate of          deposit because  section 1821(j)  "must be accorded  its ordinary                                          11          meaning"); see also Sweeney v. RTC, 16 F.3d 1, 6  (1st Cir. 1994)                     ___ ____ _______    ___          (per curiam) (explaining that  section 1821(j) bars an injunction          designed to block  an imminent nonjudicial foreclosure  scheduled          by  the RTC); 281-300 Joint Venture, 938 F.2d at 39 (holding that                        _____________________          under section  1821(j)  "the courts  lack the  ability to  enjoin          nonjudicial foreclosures that are within the statutory powers" of          the RTC qua receiver).                  ___                                          C                                          C                    The  second  query      whether  the  FDIC's  power  to          foreclose  extends to  the  context of  bankruptcy proceedings             requires us to examine appellees' hydra-headed assertion that the          debtor's bankruptcy removes the FDIC's proposed foreclosure  here          from  the mine-run, and vests  the federal courts with injunctive          powers that would be lacking in respect to other FDIC foreclosure          initiatives.   Answering this  second query is  more complicated,          for the statutes  defining the  authority of the  FDIC form  only          part  of  the relevant  legal  universe;  the statutes  governing          bankruptcy  matters also must be  consulted.  We  devote the next          two sections of this opinion to the task of answering this second          query.                    It  is not disputed that the  three properties on which          the FDIC seeks to foreclose constituted property of the debtor as          of the date of  bankruptcy and are  thus property of the  estate.          See 11 U.S.C.   541(a)(1) (explaining that the bankruptcy "estate          ___          is comprised of  . . .  all legal or  equitable interests of  the          debtor  in property  as of  the commencement of  the case").   As                                          12          Sunshine  correctly  points  out,  the  district  court  obtained          jurisdiction over those properties by virtue of 28 U.S.C.   1334.          Pursuant to 28 U.S.C.   1334(d), "[t]he district court in which a          case  under  Title  11 is  commenced  or  is  pending shall  have          exclusive jurisdiction of all  the property, wherever located, of          the  debtor as of the commencement  of such case, and of property          of the  estate."   Id.;  see also  28  U.S.C.    1334(a)  (giving                             ___   ________          district court "original and  exclusive jurisdiction of all cases          under title 11").                    Sunshine argues that this statutory mosaic also infuses          the  district court  and/or the  bankruptcy court  with power  to          enjoin the FDIC.7  This argument  builds on the theory that, as a          general proposition, a bankruptcy  court may issue injunctions to          protect its exclusive jurisdiction over estate property.   See 11                                                                     ___          U.S.C.     105(a) (empowering  bankruptcy  courts  to "issue  any          order, process, or judgment  that is necessary or  appropriate to          carry out the provisions of this title"); see also  In re Olympia                                                    ___ ____  _____________          Holding Corp., 141 B.R. 443, 446 (Bankr. M.D. Fla. 1992) (relying          _____________          on  the jurisdictional grant contained in 28 U.S.C.   1334(d) and          the grant of  protective powers contained  in 11 U.S.C.    105 to          issue  an injunction  to  safeguard estate  property).   And this          proposition, Sunshine  says, must mean that  the bankruptcy court          possesses the power to enjoin the FDIC when it is necessary to do                                        ____________________               7Despite  the  fact  that  the  district  court  issued  the          injunction  in  this  instance,  the  litigants  argue  the  case          primarily  in terms of the bankruptcy court's power to enjoin the          FDIC.  We agree  that, for purposes of this  appeal, the district          court and the bankruptcy court can be treated interchangeably.                                          13          so in order to preserve the assets of the bankruptcy estate.                    We  do not  think that  the appellees'  argument proves          their point.  Rather,  it serves merely to highlight  the tension          that  exists between FIRREA's  anti-injunction provision,  on one          hand,  and the  bankruptcy laws,  on the  other hand.   But  this          tension  does not  mean that  the statutes are  in irreconcilable          conflict.  As we explain below, they are not.                    The  preferred  approach   to  statutory   construction          dictates that a reviewing court  first determine if the perceived          conflict between two laws is real.  See Connecticut Nat'l Bank v.                                              ___ ______________________          Germain, 112  S. Ct.  1146, 1149  (1992) (cautioning  that courts          _______          confronted by  arguably conflicting statutes must  give effect to          both,  where possible).   Here,  the perceived  conflict  is more          apparent than real, for the statutes can be  reconciled.  The key          to harmonizing them lies with 11 U.S.C.   362.                    Section  362 of  the Bankruptcy  Code is  an "automatic          stay"  provision.    It  provides  in  substance  that  filing  a          bankruptcy petition  activates an automatic stay.   That applies,          inter alia, to the commencement or continuation of most  judicial          __________          actions or proceedings against the debtor to obtain possession of          property  of the estate.  11 U.S.C.   362(a)(1),(3).  Foreclosure          constitutes an action or proceeding against the debtor within the          purview  of this law.   Hence, attempts to  foreclose come within          the statutory sweep and are banned unless and until the automatic          stay is lifted, see id.   362(d).  Thus, no  person or entity has                          ___ ___          a choate power to foreclose on property belonging to a bankrupt's                                          14          estate so long as the automatic stay is in place.                    We  see  no  basis  for exempting  the  FDIC  from  the          strictures  of this regime  when it  is acting  as a  receiver or          conservator.8   Because the  automatic stay  is exactly what  the          name  implies   "automatic"    it operates  without the necessity          for  judicial intervention.  Consequently, the stay's curtailment          of  the FDIC's  power  does  not  run  afoul  of  FIRREA's  anti-          injunction  provision, which only prohibits "court . . . action .                                                       _____          . . to  restrain or affect the exercise of  powers or function of          the [FDIC] as a . .  . receiver."  12 U.S.C.   1821(j)  (emphasis          supplied).   On that basis,  we are confident  that the automatic          stay does not violate FIRREA's anti-injunction provision  because          it arises directly from the operation of a legislative enactment,          not by court order.   Accord In re Colonial Realty Co.,  980 F.2d                                ______ _________________________          125, 137 (2d  Cir. 1992); Gross v. Bell Sav.  Bank, 974 F.2d 403,                                    _____    _______________          407 (3d Cir. 1992).                    The automatic stay works in tandem with the statutes on          which  Sunshine relies.   The  broad jurisdictional  grant of  28          U.S.C.    1334  is  designed  to  centralize proceedings  in  the          bankruptcy court,  and 11 U.S.C.   105  is designed to permit the          court  to protect that jurisdictional grant.   The automatic stay                                        ____________________               8To  be  sure,  11  U.S.C.     362(b)(4) provides  that  the          automatic stay does not reach proceedings undertaken to enforce a          "governmental unit's police or  regulatory power."  But when  the          FDIC  operates as a receiver or conservator, it does not exercise          "regulatory  power"  within  the  meaning of  this  statute.  See                                                                        ___          generally  Howell  v. FDIC,  986 F.2d  569,  574 (1st  Cir. 1993)          _________  ______     ____          (distinguishing between FDIC acting  in its corporate capacity as          a regulator and in its capacity as a receiver).                                          15          furthers  this  policy  by preventing  different  creditors  from          bringing  different  proceedings  in  different  courts,  thereby          setting  in motion  a  free-for-all in  which opposing  interests          maneuver  to capture  the lion's  share of  the  debtor's assets.          "The stay insures that the debtor's affairs  will be centralized,          initially, in  a single  forum in  order  to prevent  conflicting          _________          judgments  from different courts and in order to harmonize all of          the creditors'  interests  with one  another."   In  re  Colonial                                                           ________________          Realty, 980 F.2d at 133 (citation omitted) (emphasis supplied).          ______                    Nonetheless, the automatic stay does not always operate          in  perpetuity.  While the stay ensures that most matters related          to  the debtor's  estate will  come  under the  wing of  a single          bankruptcy court  in the  first instance,9 further  provisions of                            __ ___  _____ ________          the  same  statute  permit  the  bankruptcy  court to  relax  the          automatic stay  under enumerated  conditions.   See  11 U.S.C.                                                             ___          362(d)-(g).  Once relief from the  stay is granted, an "action or          proceeding against  the  debtor  that  was  or  could  have  been          commenced before  the commencement of the  [bankruptcy] case" may          go forward.   Id.   362(a).   In other words,  by granting relief                        ___          from the  automatic stay the bankruptcy  court effectively yields          the exclusive control over the debtor's estate initially accorded          to it by section 1334(d).                    With  all  pieces  in place,  the  assembled  doctrinal                                        ____________________               9In the interests of accuracy, we note that certain property          is excepted from  the operation of  the automatic stay.   See  11                                                                    ___          U.S.C.   362(b).   This  exception has no  relevance for  present          purposes.                                          16          puzzle  looks  like  this:    the  jurisdictional  grant  and the          automatic  stay work  together  to centralize  nearly all  claims          relating to the bankrupt  estate in the bankruptcy court.   While          the legislatively mandated stay  is in place, the FDIC,  like any          other  creditor, is fully  subject to it.   If at  this point the          FDIC  were   to  ignore  the  stay  and  initiate  a  foreclosure          proceeding,  the  bankruptcy court  would  be  acting within  its          authority  to issue  an injunction.    After all,  FIRREA's anti-          injunction provision,  12 U.S.C.   1821(j),  only prohibits court          actions  restraining  FDIC's exercise  of  its  lawful powers  or                                                          ______          functions.  See 281-300 Joint Venture, 938 F.2d at 39.                      ___ _____________________                    Once the  bankruptcy court grants the  FDIC relief from          the automatic  stay, however, the court  surrenders the preferred          position  that Congress  carved out  for it.   At  that juncture,          FIRREA's anti-injunction provision comes  into play.  Thereafter,          without the automatic stay  in place, the bankruptcy  court, like          any other  court, is prevented from  taking "any action .  . . to          restrain or affect  the exercise  of powers or  functions of  the          [FDIC]  as a conservator or receiver."   12 U.S.C.   1812(j).  So          viewed, the statutes under consideration do not conflict.                    We  thus  answer  the   second  of  our  two  questions          affirmatively and hold  that FIRREA's anti-injunction  provision,          12 U.S.C.   1821(j), applies in the bankruptcy milieu.  That ends          this  phase  of  our inquiry.    In  this case,  relief  from the          automatic stay had been obtained long  before the FDIC instituted          foreclosure  proceedings,   and   Sunshine  had   not   appealed.                                          17          Consequently, the bankruptcy court  had surrendered its exclusive          control  over the properties and,  in the face  of FIRREA's anti-          injunction  provision,  could  not  then  reverse  direction  and          restrain the FDIC from going forward.10                                          D                                          D                    In  a related  vein,  the appellees  also suggest  that          section  1334(b)  gives the  bankruptcy court  power to  grant an          injunction   against   the   FDIC,    FIRREA   notwithstanding.11          Appellees' reliance on this provision is misplaced.                    We  need  not  wax  longiloquent.   The  Supreme  Court          rebuffed  a strikingly similar  interpretation of section 1334(b)          in Board of Governors  v. MCorp Financial,  Inc., 112 S. Ct.  459             __________________     ______________________          (1991).   There, the debtor contended that section 1334(b) gave a          bankruptcy  court concurrent  jurisdiction that  empowered  it to                                        ____________________               10We are not aware of any instance involving either the FDIC          or the RTC in  which a court reinstated the automatic  stay after          having granted  a party relief from it.  We leave for another day          the  dichotomous question  whether  reinstatement  of  a  section          362(a)  stay vis-a-vis  the FDIC  would be  possible, and  if so,          whether  such  reinstatement  would  constitute   "court  action"          violative of 12 U.S.C.   1821(j).  We likewise express no opinion          as  to whether  judicial  implementation of  a  stay pursuant  to          Bankruptcy Rule 8005 might run afoul of section 1821(j).               11The statute provides:                    Notwithstanding  any  Act  of  Congress  that                    confers exclusive jurisdiction  on a court or                    courts  other than  the district  courts, the                    district courts shall  have original but  not                    exclusive    jurisdiction   of    all   civil                    proceedings  arising  under   title  11,   or                    arising  in or related  to cases  under title                    11.          28 U.S.C.   1334(b).                                          18          enjoin ongoing administrative proceedings  of the Federal Reserve          Board,   despite  a   specific  statutory   provision  precluding          injunctions  in  such  circumstances.   The  Court  rejected  the          debtor's argument,  holding  that section  1334(b) "concerns  the          allocation of  jurisdiction between bankruptcy  courts and  other          `courts'" and that "an administrative agency such as the Board is          not a `court'."   MCorp, 112 S. Ct.  at 465.  Section  1334(b) is                            _____          similarly  inapplicable to  a nonjudicial  foreclosure proceeding          undertaken by the FDIC (which, like the Federal Reserve Board, is          not a "court").12                                          E                                          E                    The  appellees have one more shot in their sling.  They          strive  to  persuade  us   that,  regardless  of  FIRREA's  anti-          injunction provision, authority to enjoin  the FDIC can be  found          in  the bankruptcy  court's  general  equitable jurisdiction,  to          which the FDIC  subjected itself  by filing proofs  of claim  and          litigating in the  bankruptcy court.  For this  thesis, appellees          rely almost exclusively on the bankruptcy court's reasoning in In                                                                         __          re Tamposi Family  Inv. Properties, 159  B.R. 631 (Bankr.  D.N.H.          __________________________________          1993).  But the  reasoning of the Tamposi court  cannot withstand                                            _______          scrutiny.13                                        ____________________               12This case presents a relatively easy question involving an          ill-starred  effort  to  apply  section  1334(b)  to  nonjudicial          proceedings instituted by an  administrative agency.  We intimate          no opinion  regarding that section's applicability vel non to the                                                             _______          FDIC in other settings.               13It is important to note that, although Tamposi's reasoning                                                        _______          is flawed,  the result in the case may be defensible.  See, e.g.,                                                                 ___  ____          In re Parker North Amer. Corp., ___ F.3d ___, ___ (9th Cir. 1994)          ______________________________                                          19                    There, the debtors brought adversary complaints against          the FDIC under  11 U.S.C.    547(b), seeking  to avoid  transfers          that had  been  made to  the failed  bank less  than ninety  days          before the debtors declared bankruptcy.  See Tamposi, 159 B.R. at                                                   ___ _______          632-33.   The  FDIC contended  that the  bankruptcy court  lacked          subject matter  jurisdiction under 12 U.S.C.    1821(d)(13)(D), a          FIRREA provision  stating that "no court  shall have jurisdiction          over  . .  . [a]ny  claim or action  for payment  from .  . . the          assets of  any depository  institution for  which the  [FDIC] has          been appointed receiver . . . ."  The Tamposi  court rejected the                                                _______          FDIC's  contention because  "by  filing a  proof  of claim  in  a          bankruptcy  proceeding, the  creditor/claimant submits  itself to          the process of allowance  and disallowance of claims which  is at          the heart  of a bankruptcy court's  subject matter jurisdiction."          Tamposi, 159 B.R. at 634.          _______                    The  Tamposi  court's  reasoning   leaves  much  to  be                         _______          desired.   In the first place,  the bankruptcy court, 159 B.R. at          636, misread our opinion in  Marquis v. FDIC, 965 F.2d  1148 (1st                                       _______    ____          Cir. 1992).   In Marquis,  we held  that federal courts  retain a                           _______          modicum of  subject  matter  jurisdiction  over  actions  pending          against  failed financial  institutions even  after the  FDIC has          been  appointed as  receiver, notwithstanding  the jurisdictional          bar  of  12  U.S.C.      1821(d)(13)(D)  (a  FIRREA  accouterment          providing  that "no court shall have jurisdiction  over . . . any                                        ____________________          [1994 WL 192456, at *9] (holding that section 1821(d)(13)(D) does          not bar  a  bankruptcy court  from  hearing a  preference  action          against the RTC).                                          20          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 [FDIC] has  been appointed          receiver").  See id.  at 1155.  We  arrived at this holding  as a                       ___ ___          matter of  statutory interpretation, stressing  other language in          FIRREA that  addresses claimants' rights "to  continue any action          which  was filed before appointment  of a receiver,"  12 U.S.C.            1821(d)(5)(F)(ii).   Moreover, we specifically limited  the reach          of  the Marquis  holding to  actions pending  in a  federal court                  _______          prior  to the FDIC's appointment as receiver or conservator.  See                                                                        ___          id. at 1154.          ___                    The Tamposi court ignored this limitation.  Instead, it                        _______          erroneously asserted that whether proceedings were pending at the          time  of the FDIC's appointment "is irrelevant under the logic of          Marquis." Tamposi, 159 B.R. at 636.  This assertion is incorrect:          _______   _______          the  holding in Marquis cannot be transplanted root and branch to                          _______          a  wider class of cases.  Specifically, the holding is inapposite          in the Tamposi context   and it is similarly inapposite here.                 _______                    The  second problem  with the  reasoning of  Tamposi is                                                                 _______          that the  opinion places too great a premium on a trio of Supreme          Court cases not involving the FDIC.   Each of these cases  stands          for  the somewhat  mundane proposition  that "by  filing  a claim          against a bankruptcy estate the creditor triggers  the process of          allowance and disallowance of claims,  thereby subjecting himself          to the bankruptcy court's equitable powers."  Langenkamp v. Culp,                                                        __________    ____          498 U.S.  42, 44  (1990) (citation and  internal quotation  marks                                          21          omitted); accord  Granfinanciera, S.A. v. Nordberg,  492 U.S. 33,                    ______  ____________________    ________          59  n.14 (1989) (noting that  "by submitting a  claim against the          bankruptcy estate, creditors  subject themselves  to the  court's          equitable power to disallow those claims"); Katchen v. Landy, 382                                                      _______    _____          U.S. 323,  329-30 (1966) (similar).   We  do not doubt  that this          proposition pertains to the FDIC   but staking the farm on it for          present purposes begs the  question of what equitable  powers the          bankruptcy court possesses vis-a-vis particular litigants.                    Once  the  question  is  properly  framed,  the  FDIC's          involvement makes a dispositive difference.  The bankruptcy court          is a creature of statute, and Sunshine  has not suggested that it          is  beyond  Congress's  lawful   powers  to  limit  the  remedies          available  to that court or  to remove selected  matters from its          jurisdiction.  Here, Congress exercised that very power, limiting          the  authority of all courts   the bankruptcy court included   to          enjoin the FDIC.  The general  proposition that filing a proof of          claim  subjects  a  party  to the  bankruptcy  court's  equitable          jurisdiction cannot  be read in  isolation, but, rather,  must be          read  in  conjunction  with  the  specific  statutory   language,          contained in section 1821(j),  that Congress subsequently saw fit          to  write.   Cf. Vimar  Seguros  y Reaseguros,  S.A.  v. M/V  Sky                       ___ ___________________________________     ________          Reefer, ___ F.3d ___, ___ (1st Cir.  1994) [No. 93-2179, slip op.          ______          at  12]  (explaining  that   a  specific,  later-enacted  statute          "ordinarily controls the general") (collecting  cases); Watson v.                                                                  ______          Fraternal  Order of  Eagles, 915  F.2d 235,  240 (6th  Cir. 1990)          ___________________________          (same).                                          22                    Finally, and  relatedly, to accept the  Tamposi court's                                                            _______          reasoning would be to stand FIRREA on its ear.  After all, once a          party  declares  bankruptcy, a  creditor's principal  recourse to          money  owed is by filing proofs of claim in the bankruptcy court.          Under  the  Tamposi  regime,  when   the  FDIC  as  receiver   or                      _______          conservator  is  also a  creditor of  a  bankrupt, the  FDIC must          either  elect  to  forgo its  claim  or  to  waive its  statutory          protections.  In  the most auspicious of circumstances,  we would          be reluctant to read section  1821(j) as constructing so perverse          a paradigm.                    Here,  the circumstances  are anything  but auspicious,          for  the statute is prefaced  by the phrase  "Except as otherwise          provided in  this section  .  . .  ."   This  language serves  to          identify those occasions on  which the anti-injunction  provision          lacks  force.  See, e.g.,    1821(c)(7), 1821(c)(8)(C).  When, as                         ___  ____          now,  a   law  itself  contains  an   enumeration  of  applicable          exemptions, the maxim  "expressio unius  est exclusio  alaterius"          ordinarily  applies.      Under  that   maxim,  a   legislature's          affirmative description  of certain powers  or exemptions implies          denial  of nondescribed  powers or  exemptions.   See Continental                                                            ___ ___________          Cas. Co. v. United States, 314  U.S. 527, 533 (1942); Park  Motor          ________    _____________                             ___________          Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605  (1st Cir. 1980);          __________    ______________          see  generally  2A  Norman  J. Singer,  Sutherland  Stat.  Const.          ___  _________                          _________________________           47.23, at 216-17 (5th ed. 1992).  So it is here.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                                          23                    We  need go no further.   There is  no conflict between          the   statutory  provisions   defining  the   bankruptcy  courts'          jurisdiction and the FDIC's powers while the automatic stay is in          place.   When and if  a bankruptcy court  grants relief from  the          stay for a particular purpose, however, the  FDIC's powers, which          in this regard  are spelled  out by FIRREA's  recent, clear,  and          specific language, come to the fore and trump the residual powers          of  the courts.   Had  the court  below correctly  understood the          interface between  the relevant statutory schemes,  it would have          realized that, because the automatic stay had been dissolved, the          appellees  were requesting  relief of  a kind  that, 18  U.S.C.            1821(j)  considered,  exceeded  the district  court's  authority.          Consequently, the injunction  issued by the  lower court may  not          stand.                    Reversed.                    Reversed.                    ________                                          24
