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BRUCE G. MURPHY v. FEDERAL DEPOSIT INSURANCE CORPORATION </h1> <p class="docCourt"> </p> <p> August 1, 1995 </p> <p class="case-parties"> <b>BRUCE G. MURPHY, APPELLANT<br><br>v.<br><br>FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR SOUTHEAST BANK, N.A., APPELLEE</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src=""> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Appeals from the United States District Court for the District of Columbia (No. 92cv01924)</p></div> <div class="numbered-paragraph"><p> Before: Edwards, Chief Judge; Wald and Ginsburg, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Ginsburg, Circuit Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued April 7, 1995</p></div> <div class="numbered-paragraph"><p> Consolidated with 93-5412</p></div> <div class="numbered-paragraph"><p> Opinion for the Court filed by Circuit Judge Ginsburg.</p></div> <div class="numbered-paragraph"><p> Bruce Murphy, an investor in an unsuccessful real estate venture, seeks damages from the FDIC on the theory that the failed bank that financed the venture, of which the FDIC is the receiver, was responsible for his loss. The district court granted summary judgment in favor of the FDIC upon the ground that the appellant's claims are barred both by federal common law, see D'Oench, Duhme & Co., Inc. v. FDIC, <a>315 U.S. 447</a> (1942), and by 12 U.S.C. 1823(e). We hold that (1) Section(s) 1823(e) does not bar Murphy's claims because the FDIC has not demonstrated, as required by that statute, that the FDIC's interest in a specific asset would be diminished if the claims were upheld; and (2) the Supreme Court's recent decision in O'Melveny & Myers v. FDIC, 114 S. Ct. 2048 (1994), removes the federal common law D'Oench doctrine as a separate bar to such claims. We therefore reverse the district court and remand the case for further proceedings.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> I. Background</p></div> <div class="numbered-paragraph"><p> In his complaint Murphy tells the following story (which we take as true for the purpose of this appeal). In 1989 he paid approximately $515,000 for one "partnership unit" in the Orchid Island Associates Limited Partnership, which was then in the process of developing the Orchid Island Golf and Beach Club near Vero Beach, Florida. The investment contract guaranteed that he would receive a "6.1 multiple return on investment" but to date he has received nothing.</p></div> <div class="numbered-paragraph"><p> Southeast Bank, N.A. was the lead lender for the Orchid Island project. In the late 1980's and early 1990's the bank made several loans to the partnership, in a total amount approximating $50 million. Southeast was also involved in a plan whereby Orchid would engage in a public bond offering to raise additional funds in order to complete the project. Pursuant to that plan, Orchid would take a "bridge loan" from Southeast to cover expenses until the bonds were sold, and the proceeds from the bond offering would be used both to repay the bridge loan and to reduce the amounts outstanding on Southeast's earlier loans. When Southeast informed Orchid's other lenders that the proposed bond financing would result in a lien on the project superior to theirs, however, they rejected the proposal and the deal fell through. Orchid subsequently defaulted on its loan obligations, and Southeast foreclosed upon the property. Shortly thereafter Southeast was itself declared insolvent, the FDIC was appointed receiver of the bank, and Murphy filed this lawsuit.</p></div> <div class="numbered-paragraph"><p> Although somewhat vague, the gravamen of Murphy's claim is that the bank effectively controlled Orchid and thus assumed the role, and the corresponding legal duties, of a joint venturer or partner. Murphy contends that the bank is therefore responsible for various misdeeds allegedly committed by Orchid officials, including: "failure to register securities" (count 3); "unlawful offer and sale of securities" (count 4); "breach of fiduciary duties" (count 5); "breach of contract" (count 6); and "accounting" improprieties (count 7). Murphy further contends that, in its role as promoter of the aborted bond offering, the bank itself engaged in "fraud" (count 8) and made "negligent misrepresentation[s]" (count 9). In addition, Murphy complains that the FDIC has failed to establish alternative dispute resolution (ADR) procedures, as required by statute, and therefore has improperly denied him the opportunity to pursue his claim through an ADR channel (counts 1 and 2). Murphy seeks money damages (in counts 3-6 and 8-9), and an order requiring the FDIC to give him certain accounting statements (count 7) and to adopt ADR procedures and apply them to his claim (counts 1-2).</p></div> <div class="numbered-paragraph"><p> Each of the loan agreements between Orchid and the bank contains a provision to the following effect: "The Lender is a lender only and shall not be considered a shareholder, joint venturer or partner of the Borrower." Relying upon those written provisions, Murphy's inability to point to any written agreement that supports his joint-venture theory of liability, the federal common law D'Oench doctrine, and 12 U.S.C. 1823(e), the district court granted summary judgment in favor of the FDIC on counts 3 through 9. The district court also granted summary judgment in favor of the FDIC on the first two counts, holding that, under the governing statute, the FDIC has the discretion to decide whether to adopt an ADR procedure and, if it does so, whether a particular claim is suitable therefor.</p></div> <div class="numbered-paragraph"><p> II. Analysis</p></div> <div class="numbered-paragraph"> <p> Murphy raises distinct substantive and procedural points before this court. First, he argues that 12 U.S.C. Section(s) 1823(e) does not apply to his substantive claims and that the recent Supreme Court decision in O'Melveny & Myers v. FDIC makes clear that the federal common law D'Oench doctrine has been displaced by a federal statute. 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