Veluchamy v. Federal Deposit Insurance , 706 F.3d 810 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3879
P ETHINAIDU V ELUCHAMY, et al.,
Plaintiffs-Appellants,
v.
F EDERAL D EPOSIT INSURANCE C ORP., in its capacity
as receiver for Mutual Bank, Harvey, Illinois, and
in its corporate capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 648— William J. Hibbler, Judge.
A RGUED N OVEMBER 2, 2012—D ECIDED F EBRUARY 4, 2013
Before M ANION, W ILLIAMS, and H AMILTON, Circuit Judges.
W ILLIAMS, Circuit Judge. Plaintiffs, members of the
Veluchamy family and the Veluchamy Family Founda-
tion, controlled Mutual Bank. In an effort to save the
bank from insolvency and at the request of FDIC-Corpo-
rate, they raised about $30 million mostly in the form
of note purchases. But after that money was raised in
2 No. 10-3879
2008, FDIC-Corporate requested another $70 million to
keep the bank open, and Plaintiffs were not able to get
that funding. In May and June 2009, regulators issued
warnings that the bank would soon go under without
more capital. On July 1, 2009, the board of Mutual Bank
voted to redeem the $30 million in notes and convert
the proceeds into personal deposit accounts belonging to
two of the Veluchamys, essentially returning their
money, but this transaction could not occur without
the approval of FDIC-Corporate. See 12 U.S.C. § 1821(i).
Thirty days later, without a response from FDIC-Corpo-
rate, the bank was declared insolvent, and the FDIC was
appointed as the receiver of the bank. FDIC-Receiver
moved quickly to arrange with United Central Bank
to assume the bank’s deposits, and Mutual Bank’s
branches opened as branches of United Central Bank the
next day. Plaintiffs then filed proofs of claim with FDIC-
Receiver seeking to redeem the notes and convert the
proceeds into personal deposit accounts so that
they could obtain depositor-level (i.e., high) priority
in the post-insolvency distribution scheme, but FDIC-
Receiver did not allow the claims.
Plaintiffs brought an Administrative Procedure Act
(“APA”) claim against FDIC-Corporate, alleging that
they had been (1) misled into investing $30 million into
the bank and (2) prevented from getting their money
back on the eve of insolvency. The district court dis-
missed this claim as moot, but we dismiss on different
jurisdictional grounds. This claim asserts that FDIC-Corpo-
rate’s failure to approve the note redemption caused
Plaintiffs injury, and that FDIC-Corporate should com-
No. 10-3879 3
pensate them for that injury in the form of cash and the
use of the FDIC’s own funds to create personal deposit
accounts for them. But this request for substitute mon-
etary relief constitutes a request for “money damages,”
which the APA does not authorize. See 5 U.S.C. § 702.
In addition, Plaintiffs asserted APA and Financial
Institutions Reform, Recovery and Enforcement Act
(“FIRREA”) claims against FDIC-Receiver for rejecting
their proofs of claim. The district court’s dismissal of
these claims was proper. We lack jurisdiction to con-
sider Plaintiffs’ APA claim against FDIC-Receiver
because 12 U.S.C. § 1821(d)(7)(A) only permits such a
claim if Plaintiffs first seek administrative review of
the disallowance, which they did not. And Plaintiffs’
FIRREA claim essentially challenges the FDIC’s regula-
tory decision not to act on the bank’s redemption
approval request, when FIRREA’s administrative claims
process only contemplates claims premised on the acts
of the bank, not the FDIC as regulator. Therefore we affirm.
I. BACKGROUND
Because this case is considered on a motion to dismiss
for failure to state a claim, we assume the facts alleged
in the complaint to be true. No evidence outside the
pleadings was submitted with respect to the jurisdic-
tional arguments, so the jurisdictional analysis also as-
sumes those facts to be true. See Alicea-Hernandez v.
Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003).
The Federal Deposit Insurance Corporation (“FDIC”) is
most typically known as the federal agency that insures
4 No. 10-3879
the accounts of a bank’s depositors, but it also serves as
a bank overseer and regulator. See FDIC v. Ernst & Young
LLP, 374 F.3d 579, 581 (7th Cir. 2004). And when an
insured bank fails, the FDIC acts in a receiver capacity,
stepping into the shoes of the failed bank much like
a trustee in bankruptcy. Id. As receiver, the FDIC
attempts to preserve or enhance the value of the
bank’s assets and to dispose of them as quickly as
possible, protecting depositors and maintaining
confidence in the banking system. The parties
refer to the FDIC acting in its regulatory capacity as
“FDIC-Corporate,” and in its receiver capacity as “FDIC-
Receiver,” and so do we.
Plaintiffs Pethinaidu Veluchamy, Parameswari
Veluchamy, Arun K. Veluchamy, Anu Veluchamy, and
the Veluchamy Family Foundation, a family foundation
established by the individual plaintiffs, collectively
own 93.2% of First Mutual Bancorp of Illinois, Inc., a
holding company that was the sole owner of Mutual
Bank at Harvey, Illinois, a state-chartered bank (the
“Bank”). In 2007 and prior to June 2008, the Bank’s
capital category was “well capitalized,” the highest and
best level of capitalization that an FDIC-insured bank
may have. See 12 U.S.C. § 1831o(b)(1).
However, after the Bank’s June 2008 call report (a
report on the financial conditions of a bank submitted
quarterly to the FDIC, see 12 U.S.C. § 1817), FDIC-Corpo-
rate notified the Bank that its capital category was down-
graded to “adequately capitalized,” and that it would
need an additional $30 million of capital in order to be
No. 10-3879 5
restored to “well capitalized” status. Plaintiffs met
this requirement before the next call report was due in
September 2008, arranging for the purchase of millions
of dollars of notes from the Bank and additional shares
of First Mutual, among other actions. Most of the
$30 million infusion through note purchases came from
Plaintiffs themselves. After FDIC-Corporate reviewed
these transactions in September 2008, the Bank’s “well
capitalized” status was restored.
According to Plaintiffs’ depiction of events, the rug
was soon pulled out from under them through a series of
tag-team regulatory actions by FDIC-Corporate and
the Illinois Department of Financial and Professional
Regulation (the “IDFPR”), which regulates state-chartered
banks, over the next several months. On December 30,
2008, without any further examination of the Bank, the
IDFPR and FDIC-Corporate ordered the Bank to develop
an acceptable “Capital Plan” within 60 days (the reasons
for this are not alleged in the complaint). On February 10,
2009, the Bank filed a “Preliminary Response” out-
lining how it would maintain “well capitalized” status,
but FDIC-Corporate revoked that status the following
day because it did not believe that approximately
$6 million of the notes sold by the Bank in 2008 should
be considered capital, and because of an additional
$40 million in capital losses that FDIC-Corporate had
discovered. In March 2009, IDFPR issued a “Section
51 Order,” see 205 ILCS § 5/51, stating that it intended
to take control of the Bank if it did not satisfy certain
capital ratio benchmarks within 60 days (May 2009).
Soon thereafter, Plaintiffs arranged for the infusion of
6 No. 10-3879
another $6 million or so in capital, keeping the Bank
“adequately capitalized” and staving off the threatened
IDPFR takeover. But on April 28, 2009, a company
(whose independence Plaintiffs question) hired by FDIC-
Corporate to investigate the Bank reported that the
Bank needed another $70 million in capital to stay sol-
vent. On May 12, 2009, the IDFPR issued another Section 51
Order stating that it would take control of the bank if the
Bank did not satisfy certain capital ratio benchmarks
within 60 days (July 2009). On June 3, 2009, FDIC-Corpo-
rate notified the Bank that it was “critically undercapital-
ized,” the worst level of capitalization that may be desig-
nated. See 12 U.S.C. § 1831o(b)(1). (There is no allega-
tion that suggests that any of the regulators’ capital assess-
ments were inaccurate, nor is there any allegation that
Plaintiffs as owners were not aware of these problems.)
At a special meeting on July 1, 2009, the Bank’s board
of directors resolved to seek FDIC-Corporate’s approval
to redeem approximately $30 million in notes. See 12
U.S.C. § 1828(i)(1) (FDIC-Corporate approval required
for bank to redeem notes). In doing so, the board noted
that Pethinaidu and Parameswari Veluchamy would
agree to keep the proceeds of the redeemed notes on
deposit at the Bank in an interest-free demand deposit
account. This would give them the same highly-protected
status as ordinary depositors in the case of bank failure,
which was imminent. Otherwise, Plaintiffs—like other
investors who may not have the privilege of such an
arrangement—would drop to lowly creditor or equity
holder status near the end of the post-insolvency dis-
tribution pecking order. The complaint alleges that this
No. 10-3879 7
transaction was approved for the legitimate business
interests of the Bank, by providing liquidity (in the form
of the personal deposit accounts) among other pur-
ported benefits. This seems like nothing more than rear-
ranging deck chairs on the Titanic, or perhaps more like
the captain rushing to secure a lifeboat for himself, espe-
cially since Plaintiffs confirmed at oral argument that
this transaction would not have infused the Bank with
more capital which would have saved the sinking ship.
Nonetheless, given the motion to dismiss posture, we
assume the transaction was done for legitimate reasons.
The Bank submitted its request for FDIC-Corporate’s
approval the following day. With no response, the
Bank again asked FDIC-Corporate to act on July 24, 2009.
On July 31, 2009, the IDFPR declared the Bank insolvent
and appointed the FDIC as receiver. See 12 U.S.C.
§ 1821(c)(3)(A) (state supervisory entities have power to
request that FDIC accept receivership of failed bank).
FDIC-Receiver acted quickly, entering into a purchase
and assumption agreement with United Central Bank
to assume all the deposits of the Bank among other
actions, and the Bank’s branches opened as branches
of United Central Bank the next day.
On November 3, 2009, Plaintiffs filed administrative
proofs of claim with FDIC-Receiver. The complaint does
not specify precisely what Plaintiffs asked for, nor did
Plaintiffs include them in the record, even though this
is the very basis for one of Plaintiffs’ claims. The FDIC’s
appellate brief (and the district court, in part) frames the
FIRREA claim as seeking the redemption of notes and
8 No. 10-3879
treating the proceeds as deposits, and Plaintiffs do not
dispute this characterization, so we assume that to be
the case. The administrative proofs of claim essentially
sought to accomplish the same goal that the July 1,
2009 board resolution sought to achieve. On December 3,
2009, FDIC-Receiver “disallowed” (that is, rejected) their
claims. Within 60 days, Plaintiffs filed a complaint
in federal district court. See 12 U.S.C. § 1821(d)(6).
The complaint asserted an APA claim against FDIC-
Corporate, alleging that it arbitrarily and capriciously
misled Plaintiffs into believing that $30 million would
be enough to save the Bank, and the claim also chal-
lenged FDIC-Corporate’s failure to respond within
30 days to the Bank’s request to redeem the notes. The
complaint also raised APA and FIRREA claims against
FDIC-Receiver for disallowing the claims. It sought
declaratory relief and an order requiring the FDIC to “treat
Plaintiffs Pethinaidu Veluchamy’s and Parameswari
Veluchamy’s $23.6 million in subordinated debt as a
deposit of the Bank” and to pay Plaintiffs a total of
$9.3 million in damages.
The FDIC moved to dismiss on both jurisdictional
grounds and the merits, and the district court granted
the motions. Tackling the claims against FDIC-Receiver
first, the district court dismissed the APA claim because
it found that de novo challenges to the FDIC-Receiver’s
disallowance can only be made under FIRREA and not
the APA. The district court then dismissed the FIRREA
claim because FDIC-Receiver had no authority, absent
FDIC-Corporate’s approval, to redeem the notes, and
No. 10-3879 9
the court found it was statutorily barred from ordering
the FDIC-Receiver to act otherwise. See 12 U.S.C. § 1821(j).
The court then dismissed the APA claim against FDIC-
Corporate on mootness grounds: because the court
could not order FDIC-Receiver to redeem the notes, it
reasoned, the injuries allegedly caused by FDIC-Corporate
were not redressable by a favorable decision. Plaintiffs
(hereinafter the “Appellants”) timely appealed.
II. ANALYSIS
We start by addressing Appellants’ APA claim against
FDIC-Corporate, whose alleged acts leading up to
the Bank’s insolvency are at the core of Appellants’ com-
plaint.
A. Appellants’ APA Claim Against FDIC-Corporate
Is Barred Because It Seeks Money Damages
The district court dismissed the APA claim against
FDIC-Corporate as moot, but as discussed above, Appel-
lants’ complaint specifically seeks damages in the form
of cash payments and an order directing the FDIC to treat
two of the Appellants’ $23.6 million in subordinated
debt as bank deposits. As the FDIC notes, granting this
latter request would require the “FDIC to provide
money to repurchase the notes and utilize the proceeds to
establish a deposit account for the Veluchamys” (Appel-
lee’s Br. at 26), but they do not suggest that this is some-
how impossible to accomplish even at this late stage, and
the FDIC obviously has not acquiesced to Appellants’
10 No. 10-3879
demand for millions of dollars in cash payments. There-
fore, Appellants’ APA claim against FDIC-Corporate
is not moot, and the FDIC does not seriously argue other-
wise.
The APA claim is, however, jurisdictionally barred
for another reason: it seeks money damages. The relevant
portion of the APA, 5 U.S.C. § 702, provides:
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by
agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An
action in a court of the United States seeking
relief other than money damages and stating a
claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity
or under color of legal authority shall not be dis-
missed nor relief therein be denied on the ground
that it is against the United States or that the
United States is an indispensable party.
(Emphasis added). As the Supreme Court has explained,
the United States has not waived its sovereign immunity
when it comes to APA claims seeking money damages.
See Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999).
A party seeks “money damages” if he or she is seeking
“substitute” relief, rather than “specific” relief. Id. at 262.
In other words, “[money] [d]amages are given to the
plaintiff to substitute for a suffered loss, whereas
specific remedies ‘are not substitute remedies at all, but
attempt to give the plaintiff the very thing to which he
was entitled.’ ” Id. (quoting Bowen v. Massachusetts, 487
U.S. 879, 895 (1988)).
No. 10-3879 11
Whether the relief sought is “substitute” or “specific” is
the touchstone of this inquiry. Therefore, the fact that “a
judicial remedy may require one party to pay money
to another is not a sufficient reason to characterize the
relief as ‘money damages,’ ” Bowen, 487 U.S. at 893, if that
sum of money constitutes “the very thing” to which the
plaintiff claims he is entitled. For example, in Bowen,
Massachusetts claimed that it was statutorily entitled to
about $6.5 million in Medicaid reimbursement which
the Secretary of Health and Human Services had de-
nied. Though a successful suit would obviously result
in an award of money, the Supreme Court found that
Massachusetts’s claim was for “specific relief ([which]
undo the Secretary’s refusal to reimburse the State)
rather than for money damages” because it did not seek
“relief that substitutes for that which ought to have
been done . . . .” Id. at 910. On the other hand, even if a
plaintiff does not specifically ask for a direct cash pay-
ment, the plaintiff may still be seeking “money dam-
ages” if the relief sought is “merely a means to the end of
satisfying a claim for the recovery of money.” Blue Fox,
525 U.S. at 262. In Blue Fox, the plaintiff subcontractor
was owed money by a contractor with the federal gov-
ernment. Because the contractor became insolvent, the
subcontractor filed an APA claim seeking an equitable
lien on any funds that the government had not yet paid
to the contractor under the contract. Though the
equitable lien was not itself cash, the Supreme Court
unanimously found this to be a request for money
damages because the lien’s “goal [was] to seize or attach
money in the hands of the Government as compensation
12 No. 10-3879
for the loss resulting from the default of the prime con-
tractor.” Id. at 263 (emphasis added). In other words, the
equitable lien was a substitute for the payment that
the contractor owed to the subcontractor; the sub-
contractor never asserted a specific entitlement to
the equitable lien itself.
Under these principles, Appellants’ request for an
order requiring the FDIC to “pay Plaintiffs Pethinaidu
Veluchamy and Parameswari Veluchamy $5.0 million in
damages,” “pay Plaintiff Anu Veluchamy $1.7 million
in damages,” “pay Arun K. Veluchamy $600,000 in dam-
ages,” and “pay Veluchamy Family Foundation $2.0
million in damages,” constitutes a request for money
damages. Appellants claim that FDIC-Corporate’s al-
legedly misleading behavior caused them to pour their
money into the Bank, and the millions of dollars they
seek are meant to compensate them for their loss, which
is classic substitute relief.
Appellants’ request for an order directing the FDIC
to treat $23.6 million in subordinated debt as a deposit
of the Bank also constitutes a request for money dam-
ages. As noted above, the FDIC explains that satisfying
this request would require it to provide money from
its own coffers (or should we say, taxpayer coffers) to
effectuate the notes repurchase and create personal
deposit accounts for Pethinaidu and Parameswari
Veluchamy, and Appellants do not dispute in their reply
that this is what their APA claim, if successful, would
require. Though what is essentially a transfer of money
from the FDIC’s coffers into Appellants’ pockets does
No. 10-3879 13
not itself make that relief “money damages” under the
APA, see Bowen, 487 U.S. at 893, Appellants’ additional
failure to demonstrate (or even to assert) a legal entitle-
ment to that specific money transfer does make such
relief “money damages.” The core of Appellants’ claims
is that FDIC-Corporate should have simply given per-
mission for the Bank to redeem the notes in July 2009,
which would have resulted in the creation of these per-
sonal accounts. But giving permission pre-insolvency is
different from directly handing over money post-insol-
vency, and Appellants’ demand for an order requiring
the FDIC—potentially in a capacity far different from
its role in July 2009—to spend government money to
repurchase the notes and/or to create deposit accounts
post-insolvency is clearly a substitute for that pre-insol-
vency permission. Like the equitable lien in Blue Fox, the
relief Appellants request is “merely a means to the end
of satisfying a claim for the recovery of money.”
Blue Fox, 525 U.S. at 262. Appellants’ APA claim against
FDIC-Corporate is therefore jurisdictionally barred.
At oral argument, Appellants argued for the first time
that this APA claim was not for “money damages”
because all they seek is the FDIC-Corporate’s (belated)
approval of the note redemption so that FDIC-Receiver
may effectuate it now, or something to that effect. Such a
request might conceivably overcome the “money dam-
ages” jurisdictional bar. But this request is not contained
in the complaint, and arguments raised for the first
time at oral argument are waived. See Quality Oil, Inc. v.
Kelley Partners, Inc., 657 F.3d 609, 614-15 (7th Cir. 2011). The
FDIC prominently raised the “money damages” argument
14 No. 10-3879
in its appellate brief, clearly asserting what Appellants’
request for relief would entail, yet Appellants’ reply
brief did not dispute the FDIC’s characterization or argue
that they were really just seeking FDIC-Corporate’s
permission for the note redemption. See also United Phos-
phorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003), overruled on other grounds by Minn-Chem, Inc. v.
Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc)
(“burden of proof on a 12(b)(1) issue is on the party
asserting jurisdiction”). So we do not consider this argu-
ment.
B. Appellants’ APA Claim Against FDIC-Receiver Is
Barred Because Appellants Did Not Seek Adminis-
trative Review
We need not dwell long on Appellants’ APA claim
against FDIC-Receiver challenging its disallowance of the
claims. As we explained in Helm v. Resolution Trust Corp.,
43 F.3d 1163 (7th Cir. 1995), FIRREA provides federal
jurisdiction to review claims that are “disallowed” by
FDIC-Receiver in only two circumstances. See 12 U.S.C.
§ 1821(d)(13)(D) (“Except as otherwise provided in this
subsection, no court shall have jurisdiction over . . . any
claim relating to any act or omission of . . . the [FDIC] as
receiver.” (emphasis added)). First, the disallowance may
be challenged via an APA claim only after the relevant
administrative agency has reviewed the disallowance.
See 12 U.S.C. § 1821(d)(7)(A). Second, a party may seek
de novo review of the disallowance pursuant to 12 U.S.C.
§ 1821(d) (this is known as the “FIRREA claim”). See
No. 10-3879 15
Helm, 43 F.3d at 1165-66. Appellants here did file a
FIRREA claim, which is addressed next, but they also
filed an APA claim challenging the disallowance.
Because the disallowance was never administratively
reviewed, we lack jurisdiction to consider the APA
claim against FDIC-Receiver.
C. Appellants’ FIRREA Claim Fails Because It Essen-
tially Challenges the FDIC’s Action or Inaction as
a Regulator, Which Is Not Cognizable Under
Section 1821(d)
The FDIC appears to concede that there is no barrier
to our consideration of the FIRREA claim against FDIC-
Receiver on the merits (see Appellee’s Br. at 18), though
the heading of the brief’s next section argues that we
are barred from considering Appellants’ claims against
“either defendant” because of 12 U.S.C. § 1821(j), which
provides that “no court may take any action . . . to restrain
or affect the exercise of the powers or functions of the
[FDIC] as a conservator or receiver.” The district court
found that Section 1821(j) barred the FIRREA claim.
Furthermore, some circuits frame Section 1821(j) as a
jurisdictional inquiry (as does the FDIC). See, e.g., Hanson
v. FDIC, 113 F.3d 866, 870 (8th Cir. 1997). Therefore
we address Section 1821(j)’s applicability here.
As the text suggests, Section 1821(j) “ ‘effect[s] a sweep-
ing ouster of courts’ power to grant equitable rem-
edies . . . .’ ” Courtney v. Halleran, 485 F.3d 942, 948 (7th Cir.
2007) (quoting Freeman v. FDIC, 56 F.3d 1394, 1399 (D.C.
Cir. 1995)). “Although this limitation on courts’ power
16 No. 10-3879
to grant equitable relief may appear drastic, it fully
accords with the intent of Congress at the time it enacted
FIRREA in the midst of the savings and loan insolvency
crisis to enable the FDIC . . . to expeditiously wind up
the affairs of literally hundreds of failed financial institu-
tions throughout the country.” Freeman, 56 F.3d at 1398.
One of the “powers or functions” of the FDIC as receiver
is to take the “amounts realized from the liquidation or
other resolution of the failed bank” and to dis-
tribute them to those with claims against the assets of
the failed back, pursuant to the priority order set forth
by 12 U.S.C. § 1821(d)(11). As the FDIC explains and
Appellants do not dispute, Appellants are currently
subordinate creditors who have fourth priority in the
distribution scheme, but the redemption and deposit-via-
redemption relief sought by the FIRREA claim would
make them depositors, bumping them up to second
priority along with all the other ordinary depositors
whose savings were threatened by the Bank’s failure.
The question is whether this priority upgrade would
“restrain or affect” FDIC-Receiver’s function of dis-
tributing proceeds to claimsholders pursuant to the
statutory priority scheme. Neither party cites any case
on point, nor do we find any.
In the absence of further guidance, we conclude that
the specific relief requested by Appellants’ FIRREA
claim would not be barred by Section 1821(j). In Freeman,
the D.C. Circuit unequivocally affirmed the “sweeping”
nature of Section 1821(j) and the importance of
shielding FDIC-Receiver’s important and time-sensitive
stabilizing functions from court injunctions, but it went
No. 10-3879 17
on to say that “parties aggrieved by the FDIC’s actions as
receiver were [not] left entirely without remedies. In many
cases, . . . aggrieved parties will have opportunities to
seek money damages or other relief through the adminis-
trative claims process provided in 12 U.S.C. § 1821(d), and
their claims are ultimately subject to judicial review.”
Freeman, 56 F.3d at 1399. Therefore, where the FDIC as
receiver has disallowed a claim pursuant to the admin-
istrative process outlined in Section 1821(d) (as hap-
pened here), the judicial resolution of that claim
expressly permitted by that subsection should not
typically run afoul of Section 1821(j), another subsection
of the same statute. See Bank of Amer. Nat’l Ass’n v.
Colonial Bank, 604 F.3d 1239, 1246 (11th Cir. 2010) (“The
operation of § 1821(j) does not leave Bank of America
without a remedy. Its claim is one that can and should be
pursued through the [§ 1821(d)] administrative claims
process. . . . [O]ur sister circuits have held that all
manner of claims are appropriate for resolution through
the administrative claims process.” (citing cases)); cf.
Courtney, 485 F.3d at 949 (subsections of Section 1821
should be read in tandem with one another).
In this case, Appellants filed a Section 1821(d) adminis-
trative claim seeking second-level priority equal to that
of ordinary depositors, and the statute expressly contem-
plates these kinds of administrative claims. See 12 U.S.C.
§ 1821(d)(5)(D)(i) (“The receiver may disallow any
portion of any claim by a creditor or claim of security,
preference, or priority which is not proved to the satisfac-
tion of the receiver.” (emphasis added)); see, e.g., MBIA
Ins. Corp. v. FDIC, 816 F. Supp. 2d 81 (D.D.C. 2011) (ad-
18 No. 10-3879
dressing on the merits the plaintiff’s claim of first-level
priority status, while discussing applicability of Section
1821(j) separately for other claims). FDIC-Receiver’s
overall function of distributing amounts pursuant to the
statutory priority scheme does not seem to be impacted
simply because one claimant’s priority assignment gets
changed, at least in this case. The FDIC does not argue, for
instance, that bumping up Appellants’ priority treat-
ment even at this late stage would force lower-priority
claimants who already obtained their proceeds to
disgorge them, or cause some other practical con-
sequence that would prevent FDIC-Receiver from per-
forming its essential, time-sensitive functions (and
recall that at least one part of the FDIC’s brief concedes
that this claim may be considered on the merits). Section
1821(j) therefore does not bar Appellants’ FIRREA claim
against FDIC-Receiver. Indeed, given that the central
purpose of the statute is to protect depositors in the
wake of a bank failure, it would seem that someone
with a meritorious claim that he is a depositor should
be able to obtain that protection through the judicial
process established by Section 1821(d)(6)(A)(ii).
Appellants, however, do not have a meritorious
claim, for the simple reason that their alleged entitlement
to depositor status is not actually a claim against the
Bank. In other words, it is not premised on any action or
inaction by the Bank. They do not argue, for instance,
that they at one time had deposit accounts with the
Bank which suddenly disappeared, that the Bank had
legitimately agreed to create such accounts for them and
then failed to do so, or that the Bank did anything
No. 10-3879 19
wrong. In fact, the Bank, under the allegedly well-inten-
tioned leadership of Appellants, did everything within its
lawful power to bestow such coveted depositor status
upon Appellants. It was the FDIC in its regulatory capacity
that prevented that from happening, and thus the real
target of Appellants’ claim, dressed in FIRREA clothing, is
the FDIC-as-regulator, not the Bank. And Section 1821(d)
does not contemplate claims challenging the FDIC’s
regulatory actions or inactions, only claims premised on
the “depository institution’s” actions or inactions. See,
e.g., 12 U.S.C. §§ 1821(d)(3)(B)(i) (referring to claims of
“the depository institution’s creditors”); 1821(d)(5)(A)(i)
(referring to “any claim against a depository institution”).
That is why the FIRREA claim is properly framed as
being brought against the FDIC as receiver, i.e., in its
capacity as the Bank. Without an actual claim against
the Bank, the FIRREA claim fails.
But even if we were to consider under FIRREA the
propriety of the FDIC’s acts as a regulator, that is, its non-
response to the Bank’s last-minute note redemption
request, Appellants’ claim would still fail. The regulation
governing such note redemption requests, 12 C.F.R.
§ 303.241, provides for an expedited process for review
of requests to reduce or retire capital stock, notes, or
debentures under Section 1828(i). Under the expedited
processing provision, requests are deemed approved if
no decision is made within 20 days. But that expedited
processing is available only for well-capitalized institu-
tions. Appellants’ bank was not eligible for it. As of June 3,
2009, the Bank was “critically undercapitalized,” and the
request was made on July 2, 2009. If 20 days is the time
20 No. 10-3879
for expedited processing for such requests by stable
banks, it is not unreasonable for the FDIC to take more
than 28 days when the request comes from a finan-
cially troubled institution. When reviewing proposals
by undercapitalized banks to restore capital (not retire
capital), moreover, the FDIC is required to act “expedi-
tiously, and generally not later than 60 days after”
a capital restoration plan is submitted. 12 U.S.C.
§ 1831o(e)(2)(D)(ii). Again, if Congress deems 60 days
“expeditious” for action on a capital restoration plan,
28 days could not constitute unreasonably delayed
agency action when considering a critically undercapital-
ized bank’s request to reduce capital. And remember
that those are the provisions written for normal times,
not for the worst banking and financial crisis in the last
three generations, when Appellants’ bank went under.
Even apart from the issue of expeditiousness, it is also
hard to see how responsible bank regulators could
approve the retirement of capital by a critically under-
capitalized bank on the brink of collapse so that the
FDIC, taxpayers, and those with legitimate claims
against the Bank would be left picking up the extra tab.
See 12 U.S.C. § 1828(i)(4) (factors for approving reduction
of capital include financial condition of bank, adequacy
of capital structure, and future earnings prospects).
We lastly reject Appellants’ request for leave to amend
their complaint. Appellants never moved for leave to
amend the complaint before the district court, no Rule 59(e)
or 60(b) motion was ever filed, and Appellants do not
argue that they lacked any opportunity to ask for such
leave. See Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d
No. 10-3879 21
505, 513 (7th Cir. 2009). It is clear in any event that
granting such leave would be futile.
III. CONCLUSION
For the above-stated reasons, we A FFIRM the judgment
of the district court.
2-4-13