     Case: 14-51055   Document: 00513148005     Page: 1   Date Filed: 08/10/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                         Fifth Circuit

                                                                        FILED
                                 No. 14-51055                       August 10, 2015
                                                                     Lyle W. Cayce
                                                                          Clerk
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
Guaranty Bank,

             Plaintiff - Appellant

v.

RBS SECURITIES INCORPORATED,

             Defendant - Appellee

____________________________

Cons w/ 14-51066

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
Guaranty Bank,

             Plaintiff - Appellant

v.

DEUTSCHE BANK SECURITIES, INCORPORATED; GOLDMAN SACHS &
COMPANY,

             Defendants - Appellees




                Appeals from the United States District Court
                      for the Western District of Texas
    Case: 14-51055     Document: 00513148005     Page: 2   Date Filed: 08/10/2015



                                  No. 14-51055
Before KING, SMITH, and ELROD, Circuit Judges.
KING, Circuit Judge:
      The Federal Deposit Insurance Corporation sued the Defendants–
Appellees for securities fraud, alleging that they made false and misleading
statements in selling and underwriting residential mortgage backed securities.
While the FDIC filed its lawsuit within three years of its appointment as
receiver, and therefore within the federal limitations period in the FDIC
Extender Statute, 12 U.S.C. § 1821(d)(14), it filed suit more than five years
after the securities at issue were sold, running afoul of the limitations period
in the Texas Securities Act. Though the FDIC argued that the FDIC Extender
Statute preempts the state law limitations period, the district court granted
judgment on the pleadings in favor of the Appellees, holding that the FDIC
Extender Statute preempts only state statutes of limitations, not state statutes
of repose. That decision was error. For the reasons set out below, we conclude
that the FDIC Extender Statute preempts all limitations periods, whether
characterized as statutes of limitations or as statutes of repose. We therefore
REVERSE the judgment of the district court, and REMAND this case for
further proceedings.
                                        I.
      Prior to the 2008 global financial crisis, Guaranty Bank had invested
approximately $2,100,000,000 in residential mortgage backed securities.
Residential mortgage backed securities are packages of residential mortgages
that are sold by the original lender to a trust. Along with the mortgages
themselves, the trust receives the right to the monthly payments on those
mortgages from the homeowners.         Investors can then purchase a form of
security, called a certificate, from the trust. The certificate gives the investor
the right to a share of the monthly payments on the underlying mortgages; the
investment also provides capital for the trust to purchase mortgages.
                                        2
     Case: 14-51055       Document: 00513148005         Page: 3    Date Filed: 08/10/2015



                                      No. 14-51055
       Guaranty purchased many of its residential mortgage backed securities
from the Appellees.       In 2004 and 2005, Guaranty invested approximately
$250,000,000 in two AAA-rated residential mortgage backed securities
underwritten and sold by Appellee RBS Securities, Inc.; $100,000,000 in a
AAA-rated residential mortgage backed security underwritten and sold by
Appellee Goldman, Sachs & Co.; and another $490,000,000 in three AAA-rated
residential mortgage backed securities underwritten and sold by Appellee
Deutsche Bank Securities, Inc. 1 On August 21, 2009, the Office of Thrift
Supervision closed Guaranty Bank and the FDIC was appointed receiver.
       The FDIC filed two separate suits against the Appellees and other
financial institutions on August 17, 2012. 2 The FDIC’s lawsuit alleged claims
under the Securities Act of 1933 and the Texas Securities Act. 3 The FDIC
alleged that, in underwriting and selling the residential mortgage backed
securities to Guaranty, the Appellees “made numerous statements of material
fact about the [securities] and, in particular, about the credit quality of the
mortgage loans that backed them” that “were untrue.” The FDIC also alleged
that the Appellees “omitted to state many material facts that were necessary
in order to make their statements not misleading.” As an example, the FDIC
alleged that:
             [T]he defendants made untrue statements or omitted
       important information about such material facts as the loan-to-
       value ratios of the mortgage loans, the extent to which appraisals
       of the properties that secured the loans were performed in
       compliance with professional appraisal standards, the number of
       borrowers who did not live in the houses that secured their loans
       (that is, the number of properties that were not primary


       1 RBS Securities, Inc., Goldman, Sachs & Co., and Deutsche Bank Securities, Inc. are
herein collectively called the “Appellees.”
       2 All of the other defendant financial institutions entered into settlement agreements

with the FDIC or have otherwise been severed or dismissed from this case.
       3 All of the federal claims were settled or severed from this action.

                                             3
     Case: 14-51055       Document: 00513148005         Page: 4     Date Filed: 08/10/2015



                                       No. 14-51055
       residences), and the extent to which the entities that made the
       loans disregarded their own standards in doing so.
       The FDIC’s lawsuits were filed within three years of its appointment as
receiver, but more than five years after the securities were sold. The timing of
the FDIC’s lawsuit implicates two statutes of limitations. First, a federal
statute, referred to as the FDIC Extender Statute, provides a limitations
period of three years after the FDIC’s appointment as receiver. 12 U.S.C.
§ 1821(d)(14). But the Texas Securities Act imposes a “statute of limitations,”
characterized as a statute of repose, of five years from the date the securities
at issue were sold. Tex. Rev. Civ. Stat. Ann. art. 581-33(H)(2)(b). Therefore,
the FDIC’s suit was filed within the federal period but outside the state
period. 4
       The Appellees, in their separate cases, moved for judgment on the
pleadings, arguing that the Texas statute of repose barred the FDIC’s claims.
The Appellees’ argument centered on the Supreme Court’s opinion in CTS
Corp. v. Waldburger, 134 S. Ct. 2175 (2014), which construed a provision of
CERCLA, 42 U.S.C. § 9658, as preempting only state statutes of limitations,
not state statutes of repose.
       Relying on the decision in CTS, the district court granted the Appellees’
motions for judgment on the pleadings and dismissed the FDIC’s claims as
barred by Texas’s statute of repose. 5 We review the district court’s judgment


       4   It is undisputed that the state limitations period had not run at the time the FDIC
was appointed as receiver. See Fed. Deposit Ins. Corp. v. Barton, 96 F.3d 128, 132 (5th Cir.
1996) (“Th[e FDIC Extender S]tatute, however, does not allow the [FDIC] to bring a state
law claim that had expired before the [FDIC] was appointed receiver.”).
         5 We do not consider the argument of amicus curiae the Securities Industry &

Financial Markets Association that the FDIC Extender Statute’s reference to “contract” and
“tort” claims excludes “statutory claims.” “It is well-settled in this circuit that ‘an amicus
curiae generally cannot expand the scope of an appeal to implicate issues that have not been
presented by the parties to the appeal.’” World Wide St. Preachers Fellowship v. Town of
Columbia, 591 F.3d 747, 752 n.3 (5th Cir. 2009) (quoting Resident Council of Allen Parkway
Vill. v. U.S. Dep’t of Hous. & Urban Dev., 980 F.2d 1043, 1049 (5th Cir. 1993)).
                                              4
    Case: 14-51055     Document: 00513148005      Page: 5   Date Filed: 08/10/2015



                                  No. 14-51055
de novo. Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400,
408 (5th Cir. 2015).
                                        II.
      The Federal Deposit Insurance Corporation guarantees depositors the
money in their bank accounts up to $250,000. 12 U.S.C. § 1821(a)(1)(A), (E).
Alongside, and in furtherance of, its role providing deposit insurance, the FDIC
also acts as the receiver for failed banks. 12 U.S.C. § 1821(c), (d); see also
Stanley V. Ragalevsky & Sarah J. Ricardi, Anatomy of a Bank Failure, 126
Banking L.J. 867, 868–69 (2009). Unlike the failure of non-bank firms, bank
failures are resolved through an administrative process under the terms of the
Federal Deposit Insurance Act, not through the judicial process in the
Bankruptcy Code. See 11 U.S.C. § 109(b)(2); 12 U.S.C. § 1821(c); Robert R.
Bliss & George G. Kaufman, U.S. Corporate & Bank Insolvency Regimes: A
Comparison & Evaluation, 2 Va. L. & Bus. Rev. 143, 144–45 (2007). When a
bank fails, the FDIC evaluates the bank’s financial condition and attempts to
resolve the bank’s failure by arranging an acquisition of all or part of the failed
bank’s assets and liabilities, especially its deposits, by a healthy bank. See
Ragalevsky & Ricardi, supra, at 872–80. If an acquisition of the failed bank
cannot be arranged, or its deposits transferred, the FDIC takes over and closes
the failed bank, and pays depositors the amount of money in their accounts up
to the insured amount. See id. at 875, 880–81. The deposit insurance money
is paid from the deposit insurance fund, which is managed by the FDIC and
funded primarily through fees paid by insured banks. 12 U.S.C. § 1821(a)(4);
Milton R. Schroeder, The Law & Regulation of Financial Institutions ¶ 11.05
(2013). After paying the depositors up to the insured amount, the FDIC is then
subrogated to the depositors’ claims in order to reimburse the deposit
insurance fund.      Ragalevsky & Ricardi, supra, at 881; see also Bliss &
Kaufman, supra, at 161. As receiver, the FDIC then evaluates and determines
                                        5
       Case: 14-51055     Document: 00513148005         Page: 6    Date Filed: 08/10/2015



                                      No. 14-51055
creditors’ claims through an administrative process, Ragalevsky & Ricardi,
supra, at 887; Bliss & Kaufman, supra, at 160, and seeks to recover the
maximum amount of money possible for the bank’s creditors, including
depositors with uninsured deposits and the FDIC-as-subrogee, by disposing of
the failed bank’s assets and pursuing its outstanding legal claims, Ragalevsky
& Ricardi, supra, at 885; see Bliss & Kaufman, supra, at 160–62. The FDIC is
usually one of the failed bank’s most significant creditors, due to its payout of
deposit insurance and its consequent subrogation. See 2015–2019 Strategic
Plan: Receiver Management Program, fdic.gov (last visited June 17, 2015),
https://www.fdic.gov/about/strategic/strategic/receivership.html;              Ragalevsky
& Ricardi, supra, at 888–89; Bliss & Kaufman, supra, at 161. Federal law
mandates that the claims of uninsured domestic depositors, which include the
FDIC-as-subrogee, be given preference over the claims of the failed bank’s
other unsecured creditors. 12 U.S.C. § 1821(d)(11); Bliss & Kaufman, supra,
at 161–62. As the FDIC disposes of the failed bank’s assets and collects on its
outstanding claims, it makes periodic, pro-rata payments to the failed bank’s
creditors. Ragalevsky & Ricardi, supra, at 891; Bliss & Kaufman, supra, at
167.        “Once [the] FDIC has paid all eligible claims and disposed of all
receivership assets, it proceeds to terminate the receivership.” Ragalevsky &
Ricardi, supra, at 892. 6
        The Savings and Loan crisis of the 1980s profoundly tested the federal
deposit insurance system. “During the period from 1980 to 1988, over 500
savings associations failed—more than three-and-a-half times as many as in
the previous forty-five years combined.” Paul T. Clark et al., Regulation of
Savings Associations Under the Financial Institutions Reform, Recovery, and



        This is, by necessity, a simplified account of a complex process. For a more complete
        6

account, see generally Ragalevsky & Ricardi, supra.
                                             6
    Case: 14-51055     Document: 00513148005    Page: 7   Date Filed: 08/10/2015



                                 No. 14-51055
Enforcement Act of 1989, 45 Bus. Law. 1013, 1013 (1990). “In meeting its
obligations to depositors of failed savings and loan associations, the Federal
Savings and Loan Insurance Corporation . . . , which insured the deposits held
by savings associations, became insolvent.” Id. at 1013–14 (footnote omitted).
By the end of 1988, the Federal Savings and Loan Insurance Corporation “had
a negative net worth of approximately $50 billion.” Id. at 1014 n.5. Because
of the depletion of the insurance fund, the government “lacked the funds to
close hundreds of insolvent and marginally capitalized savings associations,”
and, “[a]s a result,” those savings associations continued to operate and incur
losses, “thereby increasing the obligations of the already insolvent FSLIC.” Id.
at 1014.
      In response to the crisis, Congress passed the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), “[a]n Act to
reform, recapitalize, and consolidate the Federal deposit insurance system, to
enhance the regulatory and enforcement powers of Federal financial
institutions regulatory agencies, and for other purposes.” Pub. L. No. 101-73,
preamble, 103 Stat. 183, 183 (1989). Along with numerous reforms to the
federal deposit insurance system, FIRREA included a provision prescribing a
statute of limitations for actions brought by the FDIC as the conservator or
receiver for a failed bank:




                                       7
     Case: 14-51055      Document: 00513148005        Page: 8    Date Filed: 08/10/2015



                                     No. 14-51055
      (d)    Powers and duties of Corporation as conservator or
             receiver
                                    ...
             (14)   Statute of limitations for actions brought by
                    conservator or receiver
                    (A) In general
                           Notwithstanding any provision of any contract,
                    the applicable statute of limitations with regard to any
                    action brought by the Corporation as conservator or
                    receiver shall be—
                           (i)   in the case of any contract claim, the
                                 longer of—
                                 (I)   the 6-year period beginning on the
                                       date the claim accrues; or
                                 (II) the period applicable under State
                                       law; and
                           (ii) in the case of any tort claim . . . , the longer
                                 of—
                                 (I)   the 3-year period beginning on the
                                       date the claim accrues; or
                                 (II) the period applicable under State
                                       law.
                    (B) Determination of the date on which a claim
                           accrues
                          For purposes of subparagraph (A), the date on
                    which the statute of limitations begins to run on any
                    claim described in such subparagraph shall be the
                    later of—
                           (i)   the date of the appointment of the
                                 Corporation as conservator or receiver; or
                           (ii) the date on which the cause of action
                                 accrues.
12 U.S.C. § 1821(d)(14). 7 The FDIC Extender Statute works by hooking any
claims that are live at the time of the FDIC’s appointment as receiver and



      7 This statute is referred to, throughout this opinion, as the FDIC Extender Statute
or the extender statute. Two other extender statutes, for the Federal Housing Finance
Agency and the National Credit Union Administration, are referred to in a similar manner
where discussed.
                                            8
    Case: 14-51055     Document: 00513148005     Page: 9   Date Filed: 08/10/2015



                                  No. 14-51055
pulling them forward to a new, federal, minimum limitations period—six years
for contract claims, three years for tort claims. See Barton, 96 F.3d at 132
(“Th[e FDIC Extender S]tatute, however, does not allow the [FDIC] to bring a
state law claim that had expired before the [FDIC] was appointed receiver.”).
Discussing this provision, Senator Riegle, one of FIRREA’s sponsors, stated:
             Although these provisions have attracted little attention
      from the media, they are of the utmost importance. Extending
      these limitations periods will significantly increase the amount of
      money that can be recovered by the Federal Government through
      litigation, and help ensure the accountability of the persons
      responsible for the massive losses the Government has suffered
      through the failures of insured institutions. The provisions should
      be construed to maximize potential recoveries by the Federal
      Government by preserving to the greatest extent permissible by
      law claims that would otherwise have been lost due to the
      expiration of hitherto applicable limitations periods.          See
      Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 243
      (1976); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311–16
      (1946).
135 Cong. Rec. 18866 (Aug. 4, 1989). The extender statute serves a functional
purpose as well, “to give the [FDIC] three years from the date upon which it is
appointed receiver to decide whether to bring any causes of action held by a
failed savings and loan.” Barton, 96 F.3d at 133. “This three-year period
allows the [FDIC] to investigate and determine what causes of action it should
bring on behalf of a failed institution.” Id.
      The parties do not dispute that the FDIC Extender Statute preempts
state statutes of limitations. However, the Appellees contend that the extender
statute does not preempt state statutes of repose. Every circuit that has heard
this argument has disagreed and held that it does. See Nat’l Credit Union
Admin. Bd. v. Nomura Home Equity Loan, Inc. (Nomura II), 764 F.3d 1199




                                        9
    Case: 14-51055       Document: 00513148005          Page: 10     Date Filed: 08/10/2015



                                       No. 14-51055
(10th Cir. 2014); 8 Fed. Hous. Fin. Agency v. UBS Ams. Inc., 712 F.3d 136, 142–
44 (2d Cir. 2013); 9 cf. Beckley Capital Ltd. P’ship v. DiGeronimo, 184 F.3d 52,
57 (1st Cir. 1999).        Indeed, our own circuit has previously rejected the
Appellees’ argument, albeit in dicta in an unpublished opinion.                          See
Stonehedge/Fasa-Texas JDC v. Miller, 110 F.3d 793, No. 96-10037, 1997 WL
119899, at *2–*3 (5th Cir. Mar. 10, 1997) (unpublished). Additionally, the
Nevada Supreme Court has reached the same conclusion. Fed. Deposit Ins.
Corp. v. Rhodes, 336 P.3d 961, 965 (Nev. 2014).
                                             III.
       Yet any analysis of the FDIC Extender Statute must take into account
the Supreme Court’s opinion in CTS Corp. v. Waldburger.                       In CTS, the
Supreme Court construed a statutory provision in CERCLA, 42 U.S.C. § 9658,
which also purports to preempt state statutes of limitations. That provision
reads:
       § 9658. Actions under State law for damages from exposure
       to hazardous substances
       (a) State statutes of limitations for hazardous substance
             cases
             (1) Exception to State statutes
                   In the case of any action brought under State law for
             personal injury, or property damages, which are caused or
             contributed to by exposure to any hazardous substance, or
             pollutant or contaminant, released into the environment
             from a facility, if the applicable limitations period for such
             action (as specified in the State statute of limitations or
             under common law) provides a commencement date which is
             earlier than the federally required commencement date,
             such period shall commence at the federally required


       8 The Nomura II court was construing an extender statute for the National Credit
Union Administration, 12 U.S.C. § 1787(b)(14), which is for all intents and purposes identical
to the FDIC Extender Statute.
       9 Similarly, the Federal Housing Finance Agency Extender Statute, 12 U.S.C.

§ 4617(b)(12), construed by the UBS court is, for all intents and purposes, identical to the
FDIC Extender Statute.
                                             10
Case: 14-51055    Document: 00513148005      Page: 11    Date Filed: 08/10/2015



                              No. 14-51055
        commencement date in lieu of the date specified in such
        State statute.
        (2) State law generally applicable
              Except as provided in paragraph (1), the statute of
        limitations established under State law shall apply in all
        actions brought under State law for personal injury, or
        property damages, which are caused or contributed to by
        exposure to any hazardous substance, or pollutant or
        contaminant, released into the environment from a facility.
                                    ...
        (b)   Definitions
              As used in this section—
                                     ...
        (2)    Applicable limitations period
               The term “applicable limitations period” means the
        period specified in a statute of limitations during which a
        civil action referred to in subsection (a)(1) of this section may
        be brought.
        (3) Commencement date
               The term “commencement date” means the date
        specified in a statute of limitations as the beginning of the
        applicable limitations period.
        (4) Federally required commencement date
               (A) In general
                      Except as provided in subparagraph (B), the
               term “federally required commencement date” means
               the date the plaintiff knew (or reasonably should have
               known) that the personal injury or property damages
               referred to in subsection (a)(1) of this section were
               caused or contributed to by the hazardous substance
               or pollutant or contaminant concerned.
               (B) Special rules
                      In the case of a minor or incompetent plaintiff,
               the term “federally required commencement date”
               means the later of the date referred to in
               subparagraph (A) or the following:
                            (i)    In the case of a minor, the date on
                      which the minor reaches the age of majority, as
                      determined by State law, or has a legal
                      representative appointed.

                                   11
    Case: 14-51055    Document: 00513148005      Page: 12    Date Filed: 08/10/2015



                                  No. 14-51055
                               (ii) In the case of an incompetent
                         individual, the date on which such individual
                         becomes competent or has had a legal
                         representative appointed.
42 U.S.C. § 9658.
      The Supreme Court held, in CTS, that § 9658 in CERCLA preempted
only state statutes of limitations, not state statutes of repose. 134 S. Ct. at
2180. The Court began by discussing the differences between those two types
of statutes. Id. at 2182–84. “[A] statute of limitations creates ‘a time limit for
suing in a civil case, based on the date when the claim accrued,’” and “a claim
accrues in a personal-injury or property-damage action ‘when the injury
occurred or was discovered.’” Id. at 2182 (quoting Black’s Law Dictionary 1546
(9th ed. 2009)). In contrast, a statute of repose “puts an outer limit on the right
to bring a civil action,” and its time limit begins to run “not from the date on
which the claim accrues but instead from the date of the last culpable act or
omission of the defendant.” Id. Because of that distinction, a statute of repose
may run before a plaintiff has even suffered an injury. Id. Explaining the
policies underlying the two types of statutes, the Court stated that “[s]tatutes
of limitations require plaintiffs to pursue ‘diligent prosecution of known
claims,’” id. at 2183 (quoting Black’s Law Dictionary 1546 (9th ed. 2009)), and
“promote justice by preventing surprises through [plaintiffs’] revival of claims
that have been allowed to slumber until evidence has been lost, memories have
faded, and witnesses have disappeared,” id. (alteration in original) (quoting
R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348–49 (1944)).
While statutes of repose serve those same purposes, “the rationale has a
different emphasis” in that “[s]tatutes of repose effect a legislative judgment
that a defendant should ‘be free from liability after the legislatively determined
period of time.’” Id. (quoting 54 C.J.S. Limitations of Actions § 7). The Court
also noted that a “central distinction” between statutes of limitations and
                                        12
    Case: 14-51055    Document: 00513148005       Page: 13   Date Filed: 08/10/2015



                                  No. 14-51055
statutes of repose is that statutes of limitations are subject to equitable tolling,
consistent with their purpose of encouraging diligence in plaintiffs, while
statutes of repose, instead intended to render defendants “free from liability
after the legislatively determined period of time,” are not. Id. (quoting 54
C.J.S. Limitations of Actions § 7).
      Turning to § 9658 itself, the Court observed that the statute
“characterizes pre-emption as an ‘[e]xception’ to the regular rule” contained in
another subsection of § 9658, that state statutes of limitations are generally
applicable, i.e., “the statute of limitations established under State law shall
apply.” Id. at 2185 (alteration in original) (quoting 42 U.S.C. § 9658(a)(2)).
“Under this structure,” the Court reasoned, “state law is not pre-empted unless
it fits into the precise terms of the exception.” Id.
      The Court then analyzed Congress’s repeated use of the term “statute of
limitations” and noted that it did not use the term “statute of repose.” Id.
According to the Court, such usage is “instructive, but . . . not dispositive.” Id.
The Court observed that “[w]hile the term ‘statute of limitations’ has acquired
a precise meaning, distinct from ‘statute of repose,’ and while that is its
primary meaning, it must be acknowledged that the term ‘statute of
limitations’ is sometimes used in a less formal way,” and, in that less formal
sense, “it can refer to any provision restricting the time in which a plaintiff
must bring suit.” Id. The Court noted that Congress itself “has used the term
‘statute of limitations’ when enacting statutes of repose” and that the
petitioner had not “point[ed] out an example in which Congress has used the
term ‘statute of repose.’” Id. The Court observed that, in discussing statutes
of limitations, the Second Restatement of Torts, published in 1977, “noted that
‘[i]n recent years special “statutes of repose” have been adopted in some
states,’” but that the Fifth Edition of Black’s Law Dictionary, published in


                                        13
   Case: 14-51055     Document: 00513148005      Page: 14   Date Filed: 08/10/2015



                                  No. 14-51055
1979, equated the two terms in its definition of statute of limitations. Id. at
2185–86 (quoting Restatement (Second) of Torts § 899 cmt.g).
      Concluding that “it is apparent that general usage of the legal terms has
not always been precise,” the Court nevertheless observed that “the concept
that statutes of repose and statutes of limitations are distinct was well enough
established to be reflected in the 1982 Study Group Report, commissioned by
Congress.” Id. at 2186. That Study Group Report was commissioned after
Congress passed CERCLA, and Congress directed the study group to
“determine ‘the adequacy of existing common law and statutory remedies in
providing legal redress for harm to man and the environment caused by the
release of hazardous substances into the environment,’ including ‘barriers to
recovery posed by existing statutes of limitations.’” Id. at 2180 (quoting 42
U.S.C. § 9651(e)(1), (3)(F)). The resulting report recommended, inter alia, that
“all states that have not already done so, clearly adopt” the discovery rule for
accrual of causes of action due to the “long latency periods in harm caused by
toxic substances.”    Id. at 2180–81.       “The Report further stated: ‘The
Recommendation is intended also to cover the repeal of the statutes of repose
which, in a number of states[,] have the same effect as some statutes of
limitation in barring [a] plaintiff’s claim before he knows that he has one.’” Id.
at 2181 (alterations in original). Section 9658 was enacted in response to the
Study Group Report’s recommendations. Id. Therefore, in construing § 9658,
the Court recognized that “[t]he Report acknowledged that statutes of repose
were not equivalent to statutes of limitations and that a recommendation to
pre-empt the latter did not necessarily include the former.”        Id. at 2186.
Further discussing the report, the Court stated:
            The Report clearly urged the repeal of statutes of repose as
      well as statutes of limitations. But in so doing the Report did what
      the statute does not: It referred to statutes of repose as a distinct
      category. And when Congress did not make the same distinction,
                                       14
      Case: 14-51055    Document: 00513148005      Page: 15   Date Filed: 08/10/2015



                                   No. 14-51055
        it is proper to conclude that Congress did not exercise the full scope
        of its pre-emption power.
Id.
        Stating that “the use of the term ‘statute of limitations’ in § 9658 is not
dispositive,” the Court moved to other modes of textual analysis. Id. First, the
Court stated that “[t]he text of § 9658 includes language describing the covered
period in the singular.” Id. Pointing to the use of the terms “applicable
limitations period,” “such period shall commence,” and “the statute of
limitations established under State law,” the Court reasoned that “[t]his would
be an awkward way to mandate the pre-emption of two different time periods
with two different purposes.” Id. at 2186–87.
        Second, the Court zeroed in on the definition of the “applicable
limitations period” in § 9658. Id. at 2187. The Court noted that “the statute
describes it as ‘the period’ during which a ‘civil action’ under state law ‘may be
brought.’” Id. (quoting 42 U.S.C. § 9658(b)(2)). Recognizing that while “in a
literal sense a statute of repose limits the time during which a suit ‘may be
brought’ because it provides a point after which a suit cannot be brought,” the
Court nevertheless reasoned that “the definition of the ‘applicable limitations
period’ presupposes that ‘a [covered] civil action’ exists.” Id. (quoting 42 U.S.C.
§ 9658(b)(2)). Since “[a] statute of repose . . . ‘is not related to the accrual of
any cause of action,’” but rather “mandates that there shall be no cause of
action beyond a certain point, even if no cause of action has yet accrued,” “a
statute of repose can prohibit a cause of action from coming into existence.” Id.
(quoting 54 C.J.S. Limitations of Actions § 7). Concluding, the Court stated
that “§ 9658(b)(2) is best read to encompass only statutes of limitations, which
generally begin to run after a cause of action accrues and so always limit the
time in which a civil action ‘may be brought.’”           Id. (quoting 42 U.S.C.
§ 9658(b)(2)).

                                         15
   Case: 14-51055     Document: 00513148005      Page: 16   Date Filed: 08/10/2015



                                  No. 14-51055
      Third, the Court found “[a]nother and altogether unambiguous textual
indication that § 9658 does not pre-empt statutes of repose” in the statute’s
provision “for equitable tolling for ‘minor or incompetent plaintiff[s].’” Id.
(alteration in original) (quoting 42 U.S.C. § 9658(b)(4)(B)). The Court observed
that a “‘critical distinction’ between statutes of limitations and statutes of
repose ‘is that a repose period is fixed and its expiration will not be delayed by
estoppel or tolling.’” Id. (quoting 4 Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1056 (3d ed. 2002)). Accordingly, § 9658’s
tolling provisions suggest “that the statute’s reach is limited to statutes of
limitations, which traditionally have been subject to tolling.” Id. at 2188. The
Court concluded that “[i]t would be odd for Congress, if it did seek to pre-empt
statutes of repose, to pre-empt not just the commencement date of statutes of
repose but also state law prohibiting tolling of statutes of repose—all without
an express indication that § 9658 was intended to reach the latter.” Id.
      The Court then confronted the argument that preemption should be
found as statutes of repose obstruct the accomplishment of the statute’s
purpose, “namely, to help plaintiffs bring tort actions for harm caused by toxic
contaminants.” Id. Rejecting that argument, the Court wrote that “the level
of generality at which the statute’s purpose is framed affects the judgment
whether a specific reading will further or hinder that purpose.” Id. The Court
stated that “CERCLA . . . does not provide a complete remedial framework,” or
“a general cause of action for all harm caused by toxic contaminants,” but
rather “leaves untouched States’ judgments about causes of action, the scope
of liability, the duration of the period provided by statutes of limitations,
burdens of proof, rules of evidence, and other important rules governing civil
actions.” Id. Accordingly, the Court concluded that “Respondents have not
shown that in light of Congress’ decision to leave those many areas of state law


                                       16
   Case: 14-51055     Document: 00513148005      Page: 17   Date Filed: 08/10/2015



                                  No. 14-51055
untouched, statutes of repose pose an unacceptable obstacle to the attainment
of CERCLA’s purposes.” Id.
      The Appellees contend that the Supreme Court’s analysis in CTS
compels the conclusion that the FDIC Extender Statute, like § 9658, preempts
only state statutes of limitations. We cannot agree.
                                         IV.
      The FDIC Extender Statute preempts statutes of repose as well as
statutes of limitations. It therefore preempts the five-year repose period in the
Texas Securities Act, and the district court erred in granting judgment on the
pleadings in favor of the Appellees. The text, structure, and purpose of the
FDIC Extender Statute all evince a Congressional intent to grant the FDIC a
three-year grace period after its appointment as receiver to investigate
potential claims. Therefore, the statute displaces any limitations period that
would interfere with that reprieve—whether characterized as a statute of
limitations or as a statute of repose.
      The Supreme Court’s decision in CTS does not compel—or even
suggest—the opposite conclusion. The Appellees’ reliance on the superficial
similarities between § 9658 and the extender statute is unavailing, and, in fact,
many of the considerations that the Court found disfavored preemption in CTS
suggest preemption when applied to the FDIC Extender Statute.
      The text of the FDIC Extender Statute indicates that it prescribes a new,
mandatory statute of limitations for actions brought by the FDIC as receiver.
The extender statute is entitled “Statute of limitations for actions brought by
conservator or receiver,” and the statute states “the applicable statute of
limitations . . . shall be” at least three years for tort claims.      12 U.S.C.
§ 1821(d)(14); id. § 1821(d)(14)(A). Such mandatory language “preclude[s] the
possibility that some other limitations period might apply” to shorten the
three-year minimum period the statute sets out. Nomura II, 764 F.3d at 1226
                                         17
    Case: 14-51055     Document: 00513148005       Page: 18    Date Filed: 08/10/2015



                                    No. 14-51055
(quoting UBS, 712 F.3d at 142); Rhodes, 336 P.3d at 965 (“In using the term
‘shall’ to mandate that the ‘applicable statute of limitations . . . shall be . . . the
longer of’ six years after the FDIC’s claim accrues or ‘the period applicable
under State law,’ Congress barred the possibility that some other time
limitation would apply to the FDIC’s claim.” (alterations in original) (quoting
12 U.S.C. § 1821(d)(14)(A)).      Interpreting the statute as excluding repose
periods from its ambit would circumvent that mandatory language by
providing the FDIC with less than three years from the date of its appointment
as receiver to bring claims.
      Moreover, the term “statute of limitations” in the extender statute does
not refer to the limitations periods being displaced, but rather the new,
mandatory federal period being created. See Nomura II, 764 F.3d at 1229 (“But
this argument confuses what the Extender Statute does—sets an all-purpose
time frame for NCUA to bring enforcement actions on behalf of failed credit
unions—with what it replaces—the preexisting time frames to bring ‘any
action.’”); Rhodes, 336 P.3d at 965–66 (“Rhodes’ reading of the FDIC extender
statute appears to overlook that the statute’s phrase ‘statute of limitations’
expressly identifies the time limitation set by the FDIC extender statute itself;
the phrase does not refer to the time limitations in other state statutes that
the FDIC extender statute displaces.”). The statute does not address the
preexisting limitations periods being displaced because they are irrelevant.
Per the plain meaning of the statute, if a preexisting limitations period would
bar suits less than three years from the date of the FDIC’s appointment as
receiver, then that state (or federal) limitations period would conflict with the
mandatory periods prescribed in the extender statute. The use of the term
“statute of limitations” in the FDIC Extender Statute to describe the new
limitations period being created contrasts sharply with the usage of the term
in the CERCLA provision at issue in CTS. See CTS, 134 S. Ct. at 2185 (“The
                                          18
    Case: 14-51055     Document: 00513148005        Page: 19   Date Filed: 08/10/2015



                                     No. 14-51055
statute defines the ‘applicable limitations period,’ the ‘commencement date’ of
which is subject to pre-emption, as a period specified in ‘a statute of
limitations.’ [12 U.S.C.] § 9658(b)(2).”); see also Burlington N. & Santa Fe Ry.
Co. v. Poole Chem. Co., 419 F.3d 355, 362 (5th Cir. 2005) (“Here, the reach of
the plain language of § 9658 does not extend to statutes of repose . . . . Literally,
§ 9658 states that it only preempts state law when the applicable state statute
of limitations ‘provides a commencement date which is earlier than the
[federally required commencement date]’—no mention of peremptory statutes
or statutes of repose.” (quoting 42 U.S.C. § 9658(a)(1)). All of § 9658’s uses of
the term “statute of limitations” describe the state statutes being preempted.
See 42 U.S.C. § 9658(a) (“State statutes of limitations for hazardous substance
cases” (emphasis added)); id. § 9658(a)(1) (“[I]f the applicable limitations period
for such action (as specified in the State statute of limitations or under common
law) provides a commencement date which is earlier than the federally
required commencement date . . . .” (emphasis added)); id. § 9658(a)(2) (“Except
as provided in paragraph (1), the statute of limitations established under State
law shall apply in all actions brought under State law for personal injury . . . .”
(emphasis added)); id. § 9658(b)(3) (“The term ‘commencement date’ means the
date specified in a statute of limitations as the beginning of the applicable
limitations period.” (emphasis added)).        In contrast, the FDIC Extender
Statute never describes the limitations periods being preempted at all, much
less using the term “statute of limitations.” In fact, the only two references to
state law in the FDIC Extender Statute refer to “the period applicable under
State law” and do not use the term “statute of limitations.”              12 U.S.C.
§ 1821(d)(14)(A)(i)(II), (ii)(II).   That Congress used the term “statute of
limitations” immediately above to describe the new, federal limitations period,
but used the broader term “the period applicable under State law” to describe
state limitations periods, suggests, if anything, that Congress meant to pull all
                                         19
    Case: 14-51055       Document: 00513148005        Page: 20     Date Filed: 08/10/2015



                                      No. 14-51055
state limitations periods into the statute’s ambit, regardless of whether they
are characterized as statutes of limitations or statutes of repose. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170
(2012) (“A word or phrase is presumed to bear the same meaning throughout
a text; a material variation in terms suggests a variation in meaning.”).
       To the extent the use of the term “statute of limitations” is relevant,
Congress’s equivocation has rendered its use of the term of little probative
value, at least by itself. The Court in CTS acknowledged that “[w]hile the term
‘statute of limitations’ has acquired a precise meaning, distinct from ‘statute of
repose,’ and while that is its primary meaning, it must be acknowledged that
the term ‘statute of limitations’ is sometimes used in a less formal way,” i.e., to
“refer to any provision restricting the time in which a plaintiff must bring suit.”
CTS, 134 S. Ct. at 2185. The Court also acknowledged that “Congress has used
the term ‘statute of limitations’ when enacting statutes of repose.” Id. 10 In
fact, the term “statute of repose” does not appear anywhere in the United
States Code. The Court in CTS also noted that the Fifth Edition of Black’s
Law Dictionary, current at the time of the enactment of both § 9658 and the
FDIC Extender Statute, equated statutes of limitations and statutes of repose
in its definition of statutes of limitations: “Statutes of limitations are statutes
of repose.” Id. at 2186 (quoting Black’s Law Dictionary 835 (5th ed. 1979)).
The Court then stated that “general usage of the legal terms has not always
been precise, but the concept that statutes of repose and statutes of limitations
are distinct was well enough established to be reflected in the 1982 Study



       10 The Court cited, as examples, 15 U.S.C. § 78u–6(h)(1)(B)(iii)(I)(aa) and 42 U.S.C.
§ 2278. The court in Nomura II cited additional examples of Congress’s usage of the term
“limitations” in creating statutes of “repose.” Nomura II, 764 F.3d at 1234 n.19 (citing 28
U.S.C. § 1658; 15 U.S.C. § 1681p). Both of the periods cited in Nomura II were, however,
entitled “time limitations” and “limitation of actions,” respectively, not “statute of
limitations.”
                                            20
    Case: 14-51055    Document: 00513148005      Page: 21    Date Filed: 08/10/2015



                                  No. 14-51055
Group Report,” focusing the rest of its analysis of the use of the term on that
piece of evidence from the legislative history. Id. The Supreme Court found
the Study Group Report’s differentiation between statutes of limitations and
statutes of repose persuasive, as “when Congress did not make the same
distinction, it is proper to conclude that Congress did not exercise the full scope
of its pre-emption power.” Id.
      In contrast to the situation in CTS, the Appellees have pointed to nothing
in the FDIC Extender Statute’s legislative history mentioning that distinction.
Given that there is no such differentiation in the legislative history here—
combined with the fact that the extender statute describes what it creates and
not what it displaces—the use of the term “statute of limitations” is minimally
“instructive.”   Id. at 2185.    The Appellees argue—and the district court
reasoned—that if Congress was aware of the distinction in 1986 (when § 9658
was passed), it was aware of the distinction in 1989 (when the extender statute
was passed). That deduction, while potentially valid, is unpersuasive. First,
it should go without saying that an admonition about the distinction between
statutes of limitations and statutes of repose in the immediate context of the
specific bill at issue is much stronger evidence of Congressional intent and
awareness than is an admonition to a different Congress, three years earlier,
in the context of a different bill. Second, the fact that Congress was aware of
the narrow meaning of the term “statute of limitations,” as well as the broad
meaning, tells us nothing about which of those two meanings it intended when
it used the term in the FDIC Extender Statute. It is perfectly acceptable, albeit
imprecise, to use the term statute of limitations to encompass statutes of
repose. See id. (“While the term ‘statute of limitations’ has acquired a precise
meaning, distinct from ‘statute of repose,’ and while that is its primary
meaning, it must be acknowledged that the term ‘statute of limitations’ is
sometimes used in a less formal way.”); see also Nomura II, 764 F.3d at 1210
                                        21
    Case: 14-51055    Document: 00513148005      Page: 22   Date Filed: 08/10/2015



                                  No. 14-51055
(“[T]he Court recognized that ‘the term “statute of limitations” is sometimes
used in a less formal way’ and ‘can refer to any provision restricting the time
in which a plaintiff must bring suit.’ The Court further acknowledged that
‘Congress has used the term “statute of limitations” when enacting statutes of
repose.’” (citation omitted) (quoting CTS, 134 S. Ct. at 2185)); UBS, 712 F.3d
at 142–43 (“Although statutes of limitations and statutes of repose are distinct
in theory, the courts—including the Supreme Court and this Court—have long
used the term ‘statute of limitations’ to refer to statutes of repose, including
specifically with respect to § 13 of the Securities Act.”); Rhodes, 336 P.3d at 965
(“The distinction between these two terms is often overlooked.”). In this sense,
it is much like the term “res judicata,” which can refer to preclusion law
generally or claim preclusion—as distinct from issue preclusion—specifically.
See 18 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 4402 (2d ed. 2015). Additionally, the evidence, both before and since the
FDIC Extender Statute’s enactment, shows that even if Congress understands
the conceptual distinction, the term “statute of repose” has not entered
Congress’s formal lexicon. Rather, the evidence indicates that, if and when
Congress creates “statutes of repose,” it refers to them as statutes of
limitations. Ironically, that legislative imprecision is underscored here by the
fact that the very statute of “repose” on which the Appellees rely is itself
entitled a “Statute of Limitations.” Tex. Rev. Civ. Stat. Ann. art. 581-33(H).
      Further, given that the extender statute uses the term “statute of
limitations” to describe what it creates—and not what it preempts—the
Appellees’ argument relies, at least to some extent, on an unstated assumption:
that if Congress creates a statute of limitations it intends only to displace other
limitations periods characterized as statutes of limitations, but not those
characterized as statutes of repose. That assumption may have some validity
when Congress creates a statute of limitations to serve the quotidian purposes
                                        22
    Case: 14-51055    Document: 00513148005      Page: 23    Date Filed: 08/10/2015



                                  No. 14-51055
of such statutes, namely, to “promote justice by preventing surprises through
[plaintiffs’] revival of claims that have been allowed to slumber until evidence
has been lost, memories have faded, and witnesses have disappeared.” CTS,
134 S. Ct. at 2183 (quoting R.R. Telegraphers, 321 U.S. at 348–49). Such
purposes are, in the usual case, consistent with the coexistence of statutes of
repose, which serve the complementary, albeit distinct, purpose of “effect[ing]
a legislative judgment that a defendant should ‘be free from liability after the
legislatively determined period of time.’” Id. (quoting 54 C.J.S. Limitations of
Actions § 7). But this is not the usual case. The FDIC Extender Statute did
not create a new statute of limitations merely for the ordinary reasons, but also
“to give the [FDIC] three years from the date upon which it is appointed
receiver to . . . . investigate and determine what causes of action it should bring
on behalf of a failed institution.” Barton, 96 F.3d at 133. In addition to a
minimum amount of time to bring claims, the extender statute is also meant
to give the FDIC certainty as to what that amount of time is. Unlike the
ordinary purposes of statutes of limitations, therefore, each of those specific,
additional purposes underlying the extender statute is inconsistent with the
coexistence of statutes of repose, at least to the extent that they would give the
FDIC less than three years from the date of receivership to bring claims. The
Appellees’ assumption is, therefore, mistaken, and the fact that Congress used
the term “statute of limitations” to describe what the extender statute creates
says nothing about what it displaces.
      Next, the Appellees cite the Supreme Court’s reasoning in CTS that
Congress’s description of “the covered period in the singular” is suggestive, as
such usage “would be an awkward way to mandate the pre-emption of two
different time periods with two different purposes.” 134 S. Ct. at 2186–87; see
also Fed. Deposit Ins. Corp. v. Bear Stearns Asset Backed Secs. I LLC, No.
12CV40000–LTS–MHD, 2015 WL 1311300, at *5 (S.D.N.Y. Mar. 24, 2015)
                                        23
    Case: 14-51055      Document: 00513148005       Page: 24    Date Filed: 08/10/2015



                                    No. 14-51055
(“Like the CERCLA extender statute, the FDIC’s Extender Provision refers
only to ‘statute of limitations’ in the singular, several times, and includes no
reference to any statute of repose.”); Fed. Deposit Ins. Corp. v. Chase Mortg.
Fin. Corp., 42 F. Supp. 3d 574, 578 (S.D.N.Y. 2014) (“Like CERCLA, the FDIC
Extender Statute describes the covered time period in the singular . . . .”).
While the FDIC Extender Statute does use the singular, it does not do so to
describe the period being preempted. See 12 U.S.C. § 1821(d)(14)(A) (“[T]he
applicable statute of limitations . . . shall be . . . .”); id. § 1821(d)(14)(A)(i)(II),
(ii)(II) (“[T]he period applicable under State law.”). Rather, the singular is used
to describe the new, federal statute of limitations and the state law period that
it conditionally borrows. See 12 U.S.C. § 1821(d)(14)(A), (A)(i)(II), (A)(ii)(II);
Nomura II, 764 F.3d at 1212.          Further, as the Court in CTS noted, the
Dictionary Act states that “unless the context indicates otherwise—words
importing the singular include and apply to several persons, parties, or things.”
1 U.S.C. § 1; CTS, 134 S. Ct. at 2187; see also Scalia & Garner, supra, at 129
(“In the absence of a contrary indication, the masculine includes the feminine
(and vice versa) and the singular includes the plural (and vice versa).”); id. at
130 (“The rule is simply a matter of common sense and everyday linguistic
experience: ‘It is a misdemeanor for any person to set off a rocket within the
city limits without a written license from the fire marshal’ does not exempt
from penalty someone who sets off two rockets or a string of 100.”). The Court
in CTS found that definition inapplicable, as “the context [of § 9658] shows an
evident intent not to cover statutes of repose.” CTS, 134 S. Ct. at 2187. But
here the context of the statute shows a contrary intent, an intent consistent
with the Dictionary Act’s default rule that the singular includes the plural.
The FDIC Extender Statute employs the “period applicable under State law”
only if it provides more than three years to the FDIC to investigate potential
claims.    See 12 U.S.C. § 1821(d)(14)(A)(i)(II), (ii)(II).        That is the only
                                          24
   Case: 14-51055     Document: 00513148005     Page: 25   Date Filed: 08/10/2015



                                 No. 14-51055
qualification for state law to apply. The statue is, therefore, ambivalent toward
the number of state statutes in play. Whether there is one state statute or
whether there are fifty, the statute only “cares” that state law would provide
more time to bring a claim than three years from the date of the FDIC’s
appointment as receiver.
      Further, the Appellees’ argument assumes that, in a state with both a
statute of limitations and a statute of repose, there are necessarily two
limitations periods—there are not.       At least not as a practical matter.
Certainly, one could understand there to be a “period of repose” and a
“limitations period.” On the other hand, if the state statute of limitations runs
prior to the statute of repose, the limitations period has run and the claim is
barred. There is not some “second” limitations period for the claim. And if the
statute of limitations would be tolled beyond the repose period, but the repose
period acts to bar the claim, again there is no “second” limitations period. The
claim is barred. Therefore, if one reads “the period applicable under State law”
in the extender statute as meaning the period after which state limitations law
would bar the claim—full stop—then there is nothing “awkward” about the
extender statute’s use of the singular. That use of the singular presents a very
different case from § 9658’s usage. See, e.g., 42 U.S.C. § 9658(b)(2) (“The term
‘applicable limitations period’ means the period specified in a statute of
limitations during which a civil action referred to in subsection (a)(1) of this
section may be brought.”). For while, in the example given, there is certainly
more than one “statute of limitations,” there is not necessarily more than one
“period applicable under State law.”
      Additionally, the Supreme Court’s reasoning in CTS—that § 9658’s
definition of the “applicable limitations period” as “‘the period’ during which a
‘civil action’ under state law ‘may be brought’” presupposed the existence of a
covered civil action—is inapposite here. CTS, 134 S. Ct. at 2187 (quoting 42
                                       25
    Case: 14-51055    Document: 00513148005      Page: 26    Date Filed: 08/10/2015



                                  No. 14-51055
U.S.C. § 9658(b)(2)). The Court reasoned that as statutes of repose can prevent
a “civil action” from ever coming into existence, that terminology in the statute
suggested Congress’s intent not to preempt statutes of repose. Id. The FDIC
Extender Statute, however, contains no such formulation.              Rather, the
extender statute prescribes “the applicable statute of limitations with regard
to any action brought by the Corporation as conservator or receiver.” 12 U.S.C.
§ 1821(d)(14) (emphasis added); see also Nomura II, 764 F.3d at 1213 (“Here,
unlike § 9658, the Extender Statute does not use the term ‘civil action’; it refers
more broadly to ‘any action.’”). It does not presuppose anything other than
that the FDIC-as-receiver has brought an action.            And again, § 9658
presupposed that a cause of action existed in defining the state limitations
period being preempted. The FDIC Extender Statute, in contrast, uses the
phrase “any action” to describe when the new limitations period it creates
applies. See 12 U.S.C. § 1821(d)(14)(A).
      The Appellees also argue that, like § 9658, the FDIC Extender Statute
invokes the concept of accrual, a concept associated with statutes of
limitations, but not statutes of repose. See Chase, 42 F. Supp. 3d at 578
(“Furthermore, the FDIC Extender Statute addresses (and changes) the dates
of accrual of claims. . . . In contrast, the 1933 Act’s statute of repose has
nothing to do with when a claim accrues.”); see also Bear Stearns, 2015 WL
1311300, at *5. The FDIC Extender Statute certainly uses the term accrual.
But “accrual” is used as part of the new, federal limitations period the extender
statute prescribes; it does not describe what it replaces. See generally 12
U.S.C. § 1821(d)(14); see also Nomura II, 764 F.3d at 1229 (“Defendants argue
that the Extender Statute’s reference to accrual means that it may only apply
if the time limit being displaced is also subject to accrual—that is, when the
displaced time limit falls within the narrow meaning of ‘statute of limitations.’
But this argument confuses what the Extender Statute does—sets an all-
                                        26
    Case: 14-51055       Document: 00513148005          Page: 27     Date Filed: 08/10/2015



                                       No. 14-51055
purpose time frame for NCUA to bring enforcement actions on behalf of failed
credit unions—with what it replaces—the preexisting time frames to bring ‘any
action.’”). Moreover, the statute ties the concept of accrual only to the new
federal three-year period created by the statute; accrual is not referenced at all
in the statute’s provisions borrowing “the period applicable under State law.”
Compare 12 U.S.C. § 1821(d)(14)(A)(ii)(I) (“the 3-year period beginning on the
date the claim accrues” (emphasis added)), with id. § 1821(d)(14)(A)(ii)(II) (“the
period applicable under State law”).                  Additionally, § 1821(d)(14)(B)’s
description of when a claim accrues for purposes of the extender statute is
definitional, and therefore also does not apply at all to “the period applicable
under State law.”        See 12 U.S.C. § 1821(d)(14)(A)(i)(I) (“the 6-year period
beginning on the date the claim accrues”); id. § 1821(d)(14)(A)(ii)(I) (“the 3-year
period beginning on the date the claim accrues”); id. § 1821(d)(14)(B)
(“Determination of the date on which a claim accrues”). Thus, the statute’s
only references to state limitations law, “the period applicable under State
law,” do not incorporate or presuppose the concept of accrual in any way. 11
Given the fact that the statute’s use of the term accrual describes what the
statute creates, not what it displaces, and is tied only to the new, federal three-
year period, and conspicuously not to the statute’s incorporation of “the period
applicable under State law,” the reference to accrual does not indicate that
preemption is limited only to statutes of limitations but not statutes of repose.
       But even if the words of the FDIC Extender Statute are considered
ambiguous, the statute’s structure demonstrates Congress’s clear intent to
preempt state statutes of repose. See Altria Grp., Inc. v. Good, 555 U.S. 70, 76


       11Indeed, a contrary reading, incorporating the statute’s definition of accrual into the
state-law period borrowed would also need to incorporate the extender statute’s definition of
accrual in § 1821(d)(14)(B). Such a reading would have the bizarre effect of stitching the
state law limitations period together with the statutory accrual date, i.e., the date of the
FDIC’s appointment as receiver. That reading has no support in the text.
                                              27
    Case: 14-51055    Document: 00513148005       Page: 28   Date Filed: 08/10/2015



                                  No. 14-51055
(2008) (“Congress may indicate pre-emptive intent through a statute’s express
language or through its structure and purpose.”); see also Teltech Sys., Inc. v.
Bryant, 702 F.3d 232, 236 (5th Cir. 2012) (quoting same). The statute begins
by setting out its new, exclusive federal limitations period.           12 U.S.C.
§ 1821(d)(14)(A). By doing so, the statute mandates the application of federal
law as the default limitations period. Under this structure, state law is the
exception, not the rule. “[T]he period applicable under State law” does not
apply unless it fits the precise terms of the statute, namely that it extend more
than three years from the date of the FDIC’s appointment as receiver. See 12
U.S.C. § 1821(d)(14)(A)(i), (ii). If a “period applicable under State law” does
not meet that condition, then it cannot apply under the statute’s structure,
regardless of its characterization as a statute of limitations or a statute of
repose.
      Indeed, in its analysis of § 9658 in CTS, the Supreme Court found it
instructive that § 9658 characterized “pre-emption as an ‘[e]xception’ to the
regular rule” in the statute that “the statute of limitations established under
State law shall apply.” CTS, 134 S. Ct. at 2185 (alteration in original) (quoting
42 U.S.C. § 9658(a)(1), (2)). The Court stated that “[u]nder this structure, state
law is not pre-empted unless it fits into the precise terms of the exception.” Id.
Conversely, the FDIC Extender Statute sets out a new federal rule that
functions as the default, with application of state law as the exception. See 12
U.S.C. § 1821(d)(14)(A)(ii) (“[T]he applicable statute of limitations . . . shall be
. . . the longer of— (I) the 3-year period beginning on the date the claim accrues;
or (II) the period applicable under State law.”); see also Nomura II, 764 F.3d at
1208–09 (“Unlike § 9658’s federal commencement date, the limitations
framework provided in the Extender Statute does not establish a narrow
‘“exception” to the regular rule.’      Instead, it creates the exclusive time
framework for all NCUA enforcement actions and replaces all other time
                                        28
    Case: 14-51055    Document: 00513148005       Page: 29   Date Filed: 08/10/2015



                                  No. 14-51055
periods. Accordingly, unlike the applicable state limitations periods modified
by § 9658’s federal commencement date, the time limits displaced by the
Extender Statute need not ‘fit[ ] into [its] precise terms . . . .’” (alterations in
original) (citation omitted) (quoting CTS, 134 S. Ct. at 2185)). Given this
structure, per the Supreme Court’s analysis in CTS, it is state law that must
“fit[] into the precise terms of the exception” in order to apply. CTS, 134 S. Ct.
at 2185. The terms of the exception in the statute are not that the “period
applicable under State law” be a statute of limitations, rather than a statute
of repose, but that it be longer than three years. If the state limitations period
fails to meet that condition—regardless of its characterization—it cannot “fit[]
into the precise terms of the exception” in the extender statute, and therefore
cannot apply. Id.
      The district court brushed aside that difference in the structure of the
two statutes, reasoning that “Section 9658 alters state limitations periods only
when the state limitations period commences from an earlier date. . . .
Similarly, the FDIC Extender Statute alters state statutes of limitations only
when they are shorter than the alternative federal limitations period; if the
state statute is more generous, its terms continue to apply.” See also Appellees’
Br. 31 (“The FDIC also contends that the federal accrual date created by the
FDIC Extender Statute applies only if it is later than the state-law accrual
date, but again, this is no distinction at all: the federal statute of limitations
and accrual rules in both the FDIC Extender Statute and its CERCLA
analogue apply only when they yield later dates than would apply under state
law.”). This reasoning is fundamentally flawed for two reasons. First, the
district court’s assumption that a difference in structure only is probative to
statutory interpretation if it entails a difference in function is circular. In any
statute that contains an exception, it will always be the case that “the default
rule applies except when it doesn’t.” But which rule stands as the default rule
                                        29
    Case: 14-51055       Document: 00513148005        Page: 30     Date Filed: 08/10/2015



                                      No. 14-51055
and which stands as the exception provides insight into Congress’s preemptive
intent. See Altria, 555 U.S. at 76 (“Congress may indicate pre-emptive intent
through a statute’s . . . structure . . . .”). In § 9658, Congress provided that
application of state law was the default, indicating a narrow preemptive intent.
See 42 U.S.C. § 9658(a)(2); CTS, 134 S. Ct. at 2185 (“Turning to the statutory
text, the Court notes first that § 9658, in the caption of subsection (a),
characterizes pre-emption as an ‘[e]xception’ to the regular rule. . . . Under
this structure, state law is not pre-empted unless it fits into the precise terms
of the exception.” (alteration in original)). In contrast, the FDIC Extender
Statute sets application of the federal period as the default rule, indicating a
broader preemptive intent.         See 12 U.S.C. § 1821(d)(14)(A). 12         Second, by


       12In fact, that difference in structure was highlighted to the Supreme Court by the
United States’ brief as amicus curiae in CTS as supporting the narrow construction of § 9658
that the Court ultimately adopted:
              Given these textual manifestations of Congress’s limited intent, Section
       9658 contrasts markedly with other statutes in which Congress chose to
       override all otherwise applicable time limitations.
              In one set of such statutes, Congress created a new, exclusive time
       limitation applicable to claims brought by specified federal agencies as
       conservator, receiver, or liquidating agent for failed financial institutions.
       Courts of appeals have correctly construed such limitations periods to apply to
       the exclusion of any other time limitation that might otherwise apply. See
       National Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 727
       F.3d 1246, 1254–1267 (10th Cir. 2013) (construing 12 U.S.C. 1787(b)(14)),
       petition for cert. pending, No. 13-576 (filed Nov. 8, 2013); Federal Hous. Fin.
       Agency v. UBS Ams. Inc., 712 F.3d 136, 141–144 (2d Cir.) (construing 12 U.S.C.
       4617(b)(12)), motion for leave to intervene and file a pet. for writ of cert. denied,
       134 S. Ct. 372 (2013); see also Beckley Capital Ltd. P’ship v. DiGeronimo, 184
       F.3d 52, 57 (1st Cir. 1999) (construing 12 U.S.C. 1821(d)(14)). The text,
       context, and history of those provisions make clear that Congress intended an
       exclusive, uniform time limitation to apply to actions brought by the
       designated federal agencies. E.g., UBS Ams., 712 F.3d at 141 (noting that 12
       U.S.C. 4617(b)(12) “sets forth ‘the applicable statute of limitations with regard
       to any action brought by [FHFA] as conservator or receiver’”) (quoting 12
       U.S.C. 4617(b)(12)(A) (emphasis and alteration in original).
              Here, by contrast, Congress did not enact a new time limitation to
       supersede all others. Instead, Congress altered particular preexisting state
       statutes of limitations in only one limited respect—by changing the date on
       which the cause of action accrued. Congress otherwise left time limitations
                                            30
    Case: 14-51055      Document: 00513148005        Page: 31    Date Filed: 08/10/2015



                                    No. 14-51055
looking at the statutes at too high a level of abstraction, the district court was
also incorrect as to the way the two statutes’ exceptions function. It is simply
not the case that “Section 9658 alters state limitations periods only when the
state limitations period commences from an earlier date.”                Section 9658
contains another precondition to the application of the federal rule that was
fundamental to the Supreme Court’s decision in CTS. Under § 9658, the
federal rule preempts the state rule “if the applicable limitations period for
such action,” defined as “the period specified in a statute of limitations,”
“provides a commencement date which is earlier than the federally required
commencement date.” 42 U.S.C. § 9658(a)(1), (b)(2). Section 9658, therefore,
sets two preconditions for the application of federal law: (1) the state law must
be specified in a statute of limitations and (2) it must commence earlier than
the federally required commencement date. But the FDIC Extender Statute’s
plain language provides for only one precondition, that “the period applicable
under State law” be longer than three years from the date of the FDIC’s
appointment as receiver. The district court’s reasoning is therefore incorrect
as a matter of statutory interpretation generally and as applied to this case.
      Moreover, the Supreme Court in CTS found “[a]nother and altogether
unambiguous textual indication that § 9658 does not pre-empt statutes of
repose” in that “§ 9658 provides for equitable tolling for ‘minor or incompetent
plaintiff[s].’” CTS, 134 S. Ct. at 2187 (alteration in original) (quoting 42 U.S.C.
§ 9658(b)(4)(B)). That “unambiguous textual indication” is wholly absent from
the FDIC Extender Statute, which includes no such tolling provisions. See
generally 12 U.S.C. § 1821(d)(14).


        unchanged, explicitly stating that those time limitations continue to apply
        “[e]xcept” to the extent that they are specifically superseded by federal law. 42
        U.S.C. 9658(a)(2).
Brief for the United States as Amicus Curiae Supporting Petitioner at 22–23, CTS Corp. v.
Waldburger, 134 S. Ct. 2175 (2014) (No. 13-339), 2014 WL 828057, at *22–*23.
                                           31
   Case: 14-51055         Document: 00513148005         Page: 32   Date Filed: 08/10/2015



                                       No. 14-51055
                                             V.*
      To the extent the text and structure of the FDIC Extender Statute leave
any doubt that it is intended to displace both statutes of limitations and
statutes of repose, it is dispelled by the statute’s purpose. The 2008 financial
crisis caused an explosion in the number of bank failures that the FDIC was
called on to resolve. Twenty-five banks failed from 2001 through 2007; five-
hundred and thirteen failed from 2008 to 2015. Failed Bank List, FDIC,
https://www.fdic.gov/bank/individual/failed/banklist.html (last visited July 17,
2015). During the Savings and Loan Crisis, in response to which FIRREA was
passed, the numbers were similarly staggering: “During the period from 1980
to 1988, over 500 savings associations failed—more than three-and-a-half
times as many as in the previous forty-five years combined.” Clark et al.,
supra, at 1013.         This proverbial “page of history” brings the import of
Congress’s purpose in passing the FDIC Extender Statute into sharp relief.
See N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).                “The purpose of
FIRREA’s preemption of state statutes of limitations is to give the [FDIC] three
years from the date upon which it is appointed receiver to . . . . investigate and
determine what causes of action it should bring on behalf of a failed
institution.” Barton, 96 F.3d at 133; UBS, 712 F.3d at 142 (“Congress obviously
realized that it would take time for this new agency to mobilize and to consider
whether it wished to bring any claims and, if so, where and how to do so.
Congress enacted [the FHFA Extender Statute] to give FHFA the time to
investigate and develop potential claims on behalf of [Fannie Mae & Freddie
Mac]—and thus it provided for a period of at least three years from the
commencement of a conservatorship to bring suit.”). Application of statutes of
repose would frustrate that purpose to an extent equal to—and possibly


      *   Judge Elrod does not concur in this Part V.

                                              32
   Case: 14-51055     Document: 00513148005     Page: 33   Date Filed: 08/10/2015



                                 No. 14-51055
greater than—the application of statutes of limitations.       It is difficult to
conceive that Congress, in enacting the extender statute, reasoned that the
FDIC required at least three years to investigate and pursue claims and
determined that, while statutes of limitations posed too great an obstacle to
that objective to stand, statutes of repose did not. See Nomura II, 764 F.3d at
1217 (“When Congress enacted the Extender Statute, it not only gave the
NCUA the time it needs to do its work, it also relieved the NCUA from the
burden of complying with multiple federal and state statutes of limitations by
giving it a statute of limitations of its own. It strains common sense to think
Congress would have saddled the NCUA with having to comply with multiple
federal and state statutes of repose.”); UBS, 712 F.3d at 142. It is highly
unlikely that Congress would have preempted a statute of limitations that
would cut off a potential claim the day after the FDIC’s appointment as
receiver, but be perfectly content with that same result so long as it was caused
by a statute characterized as a statute of “repose.” It seems even less likely
given that the Appellees have failed to cite so much as a whisper in the
legislative history indicating such an intent. To the contrary, one of FIRREA’s
sponsors stated on the record that “[t]he provisions should be construed to
maximize potential recoveries by the Federal Government by preserving to the
greatest extent permissible by law claims that would otherwise have been lost
due to the expiration of hitherto applicable limitations periods.” 135 Cong.
Rec. 18866 (Aug. 4, 1989) (statement of Senator Riegle). Therefore, to the
extent the legislative history is probative, it suggests that the FDIC Extender
Statute should be read broadly. Nomura II, 764 F.3d at 1217 (“FIRREA’s
statutory purpose (as explained by its sponsor, the Supreme Court, and in the
statute itself), though generally stated, demonstrates Congress meant any
ambiguity in the term ‘statute of limitations’ to be construed broadly.”). And
the extender statute provides the FDIC with more than just time—it provides
                                       33
   Case: 14-51055     Document: 00513148005     Page: 34   Date Filed: 08/10/2015



                                 No. 14-51055
certainty. Certainty that allows the FDIC—taxed to the limit in the midst of
a financial crisis—to focus its efforts on resolving failed banks and
investigating potential claims rather than combing state statute books for
potentially applicable limitations periods and speculating about, for example,
whether a certain tolling provision might apply, or whether a given limitations
period would be characterized by a court as a statute of limitations or a statute
of repose. See Nomura II, 764 F.3d at 1217. That certainty would be wholly
upset absent preemption of all limitations periods.
      But the Appellees contend that this purpose and legislative history are
insufficient, pointing to the fact that the Supreme Court in CTS eschewed the
plaintiff’s arguments regarding the legislative history of § 9658 and citing the
Court’s statement that “no legislation pursues its purposes at all costs.” CTS,
134 S. Ct. at 2185 (internal quotation marks omitted); see also id. at 2188. The
two cases could not be more different. The proffered legislative purpose in CTS
was general, “to help plaintiffs bring tort actions for harm caused by toxic
contaminants.” Id. at 2188. The purported purpose of the FDIC Extender
Statute—to give the FDIC at least three years to investigate and evaluate
potential claims—is specific and tied to the statute’s structure and function.
See id. (“But the level of generality at which the statute’s purpose is framed
affects the judgment whether a specific reading will further or hinder that
purpose.”). More fundamentally, the Supreme Court in CTS was faced with
two competing constructions: one that would serve the statute’s general
purpose, by extending the characteristically short statutes of limitations for
personal injury and property damage torts but not the characteristically longer
statutes of repose, and another that would serve that purpose to a greater
extent. See id. at 2181, 2182 (describing North Carolina’s three-year statute
of limitations and ten-year statute of repose). In contrast, one of the two
constructions here would fit Congress’s (much more specific) purpose exactly;
                                       34
    Case: 14-51055       Document: 00513148005          Page: 35     Date Filed: 08/10/2015



                                       No. 14-51055
the other would have Congress playing at roulette. One would guarantee the
FDIC at least three years from its appointment as receiver to investigate and
bring claims; the other would sometimes grant the FDIC that period, but often
not, depending on whether a limitations period, even if titled a “statute of
limitations,” were characterized as a statute of “repose.” The purpose of the
extender statute is, therefore, a proper consideration here and reinforces the
plain meaning of the text—the extender statute displaces statutes of repose. 13
       The text and structure of the FDIC Extender Statute provide for
preemption of all limitations periods—no matter their characterization as
statutes of limitations or statutes of repose—to the extent that they provide
less than three years from the date of the FDIC’s appointment as receiver to
bring claims. 14     That is also the only interpretation consistent with the


       13  Further, the Appellees’ argument that O’Melveny & Myers precludes reliance on
“FIRREA’s cost-recovery objective” in order to support preemption fails. Appellees’ Br. 37
(internal quotation marks omitted). In O’Melveny & Myers, the FDIC urged the Supreme
Court to craft a new, federal, common-law rule for the imputation of liability. 512 U.S. 79,
83 (1994). The Court stated:
                The closest respondent comes to identifying a specific, concrete federal
        policy or interest that is compromised by California law is its contention that
        state rules regarding the imputation of knowledge might “deplet[e] the deposit
        insurance fund,” Brief for Respondent 32. But neither FIRREA nor the prior
        law sets forth any anticipated level for the fund, so what respondent must
        mean by “depletion” is simply the forgoing of any money which, under any
        conceivable legal rules, might accrue to the fund. That is a broad principle
        indeed, which would support not just elimination of the defense at issue here,
        but judicial creation of new, “federal-common-law” causes of action to enrich
        the fund. Of course we have no authority to do that, because there is no federal
        policy that the fund should always win. Our cases have previously rejected
        “more money” arguments remarkably similar to the one made here.
Id. at 88. The statutory purpose of the FDIC Extender Statute is altogether different. The
purpose of providing the FDIC at least three years to investigate claims is specific and tied
to the structure and function of the statute. Additionally, the statement from Senator Riegle
is not a broad pronouncement about the purpose of FIRREA as a whole, but is a specific
statement from the bill’s sponsor stating that the specific provision at issue in this case is
meant to be construed broadly.
        14 We therefore need not reach the applicability of the presumption against

preemption or the FDIC’s argument that statutes of limitations should be construed narrowly
in favor of the federal government.
                                             35
   Case: 14-51055    Document: 00513148005     Page: 36   Date Filed: 08/10/2015



                                No. 14-51055
statute’s purpose of providing the FDIC with a minimum period of time to
investigate and evaluate potential claims on behalf of a failed bank. The
contrary interpretation would thwart the purpose of Congress by truncating
the FDIC’s statutory three-year minimum period and leaving tenebrous the
applicable limitations period where Congress meant to elucidate it.
                                     VI.
     The judgment of the district court is therefore REVERSED, and the case
is REMANDED.




                                     36
