look to the plain language of the statute." Id. at 1274 n.5. The court noted that if judicial review were unavailable, the plaintiff would have no forum in which to present its claims; the court concluded that "such an outcome raises constitutional problems." Id.
The First and Third Circuits have also ruled on the question presented in this case. Both have held that § 1821(d)(13)(D) applies to post-receivership claims. Heno v. Federal Deposit Ins. Corp., 20 F.3d 1204 (1st Cir. 1994); Rosa v. Resolution Trust Corp., 938 F.2d 383 (3d Cir.), cert. denied, 502 U.S. 981, 116 L. Ed. 2d 608, 112 S. Ct. 582 (1991). In Heno, the court noted that the FDIC followed an "internal manual procedure" for reviewing post-receivership claims under FIRREA. Heno, at 1208. According to the First Circuit, the FDIC has implicitly interpreted § 1821(d)(5)(C)(ii), which permits claimants who did not receive notice of the receiver's appointment to file after the deadline, also to permit late filing by claimants whose claims did not arise until after the deadline. Id. at 1209. The FDIC has construed § 1821(d)(13)(D) to require exhaustion of administrative remedies for both pre- and post-receivership claims. The Heno court held that the FDIC's interpretation was "permissible" and thus entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Heno, at 1209.
The Second Circuit has held that because several agencies in addition to the RTC administer FIRREA, the RTC's interpretation of the statute is not entitled to "full Chevron deference." 1185 Avenue of the Americas Assocs. v. Resolution Trust Corp., 22 F.3d 494, 497 (2d Cir. 1994). In Heno, the First Circuit noted that "sound policy grounds" support the RTC's construction of the statute. The court found that administrative review of post-receivership claims "should optimize prospects for expeditious resolution of these claims against failed banks, make maximum use of [RTC's] cumulative administrative expertise, and minimize burdensome litigation in the federal courts." Heno, at 1209. In a recent case, a district judge in this district relied on the same policy grounds in holding that § 1821(d)(13)(D)'s prohibition on judicial review extends to claims that arise after receivership. Federal Deposit Ins. Corp. v. Boyarsky, No. 94 Civ. 7482, 1995 U.S. Dist. LEXIS 8530, *14, 1995 WL 373483, at *7 (S.D.N.Y. June 22, 1995) (Sweet, J.).
The claims review provisions of FIRREA manifest Congress' intent that the RTC should have the ability "to dispose of the bulk of claims against failed financial institutions expeditiously and fairly." See H.R. Rep. No. 54(I), 101st Cong., 1st Sess. 419 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 215. In this action, interpreting § 1821(d)(13)(D) to exclude post-receivership claims would result in RTC review of only some of Prieto's claims, although all are part of the same dispute and all arise out of a single course of conduct. These circumstances demonstrate particularly clearly that Prieto's proposed reading of § 1821(d)(13)(D) would undermine FIRREA's goal of efficient and expert claim resolution by the RTC.
A well-settled rule of statutory construction is that a statute should be construed to avoid serious constitutional problems "unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979)). I accept the RTC's representation that its review process is open to Prieto's post-receivership claims. Therefore, I do not confront the prospect that concerned the court in Homeland, that Prieto will have no forum in which to present her claims. I find persuasive the well-reasoned opinion of Judge Sweet in Boyarsky, and conclude that § 1821(d)(13)(D) deprives this court of subject matter jurisdiction over Prieto's claims.
Prieto argues that even if § 1821(d)(13)(D) applies to post-receivership claims, her failure to exhaust her administrative remedies should be excused because administrative review would be futile. She relies on Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588 (2d Cir. 1993), which explained that an exception to the requirement of exhaustion of administrative remedies under ERISA applies when the plaintiff can demonstrate that pursuit of administrative remedies would be futile. See id. at 594. But Prieto has not shown that administrative review would be futile.
Prieto points to a letter from the RTC as receiver for Edison Federal Savings and Loan Association, another defendant in this case. The letter states that the RTC has reviewed Prieto's claims against Edison and disallowed them, and gives reasons for the RTC's decision. Letter from Resolution Trust Corporation to Ivonne Prieto, counsel for Emerida Prieto, of 10/18/94, Pl. Mem. Ex. 1. The fact that the RTC disallowed Prieto's claims against Edison does not mean that RTC review of her claims against Standard would be futile. The RTC has not considered Prieto's proof of Standard's actions. The RTC also has not reviewed Prieto's federal statutory claims, because Prieto's complaint alleges only state law tort claims against Edison. Prieto argues that the RTC conducted a de facto review of her claims "during the extended pre-litigation settlement and mediation period" of this case. (Pl. Mem. at 11.) The RTC's evaluation of the claims for the purpose of settlement discussions, however, cannot substitute for the administrative review process required by the statute. See Rosa, 938 F.2d at 395 ("RTC's legal position in this litigation is not necessarily conclusive of the receiver's determination of plaintiff's claims.").
For the foregoing reasons, the RTC's motion is granted and Prieto's claims against Standard are dismissed for lack of jurisdiction without consideration of their merits.
Dated: New York, New York
November 16, 1995
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
© 1992-2004 VersusLaw Inc.