Plaintiff, the U.S. Leasing Corporation, sues the Resolution Trust Corporation (RTC) for money allegedly due plaintiff from the now-liquidated Federal Asset Disposition Association (FADA) in payment for telephone leasing services. RTC is sued in its capacity as receiver for FADA.
RTC moves to dismiss the case on the ground that plaintiff, as a creditor of FADA, failed to file a timely claim with RTC pursuant to 12 U.S.C. § 1821(d)(3)(B). That section establishes a mandatory administrative claims process requiring claimants to submit a "Proof of Claim" or equivalent information to the RTC by a date certain after first publication of a notice to creditors. Because plaintiff failed to file the requisite claim, defendant argues, U.S. Leasing is prohibited from recovering.
Defendant also argues this court lacks subject matter jurisdiction because 12 U.S.C. § 1821(d)(13)(D)(i) bars federal jurisdiction over "any claim or action for payment from . . . the assets of any depository institution for which the [RTC] has been appointed receiver," except as otherwise provided in that section. Courts have confirmed that the express language of § 1821(d)(13)(D) requires exhaustion of the administrative process before a federal claim may be entertained. See, e.g., RTC v. Mustang Partners, 946 F.2d 103 (10th Cir. 1991).
Plaintiff does not dispute that the RTC administrative claims process is mandatory for the creditors of depository institutions for which RTC has been appointed receiver. Nor does U.S. Leasing allege it timely complied with the claims process in this case.
Instead, plaintiff contends that FADA was acting here as a federal agency and not as a private "depository institution," the creditors of which are required to comply with the administrative claims process or over which federal jurisdiction is prohibited.
Plaintiff relies primarily on Juliano v. Federal Asset Disposition Association, 736 F. Supp. 348 (D.D.C. 1990), and Alley v. RTC, 984 F.2d 1201 (D.C. Cir. 1993), for the proposition that FADA was a federal agency. Neither of these cases, however, establishes plaintiff's contention. In Juliano, the district court dismissed a qui tam action brought against FADA, finding that because the claim would require the federal government to recover money from itself, no actual case or controversy was presented. The court based its conclusion on the fact that 'FADA was owned and controlled by [the Federal Savings and Loan Insurance Corporation (FSLIC)], a government agency." 736 F. Supp. at 350. Because "any judgment against FADA ultimately would be paid out of the federal treasury" back to the federal government, the court reasoned, no "real, substantial controversy" was presented. Id. at 351. The court's finding that "FADA was a federally created and federally funded institution," however, did not constitute a finding that FADA itself was a federal agency, as plaintiff attempts to suggest. Id. at 353 n.5. The mere fact that FADA's stock was held by a federal agency does not establish that FADA itself was a federal agency excepted from the RTC claims process.
Our court of appeals' decision in Alley supports this conclusion. The Alley court conceded that "one could argue long and hard" regarding FADA's ambiguous status as a federal or private entity.
For some purposes FADA might properly be characterized as an agency or instrumentality of the federal government. The roles FHLBB and FSLIC played in creating, supervising, and patronizing FADA gave FADA an undeniable public coloration. On the other hand, certain of FADA's features would not be found in a standard Field Guide to Governmental Entities: FADA's payment of federal and states taxes, for example, cuts strongly against public entity authorization.