Auction Co. of America v. Federal Deposit Insurance , 132 F.3d 746 ( 1997 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 1997 Decided December 19, 1997
No. 96-5343
Auction Company of America,
Appellant
v.
Federal Deposit Insurance Corporation, as Manager of the
FSLIC Resolution Trust Fund,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv02006)
Alan M. Grayson argued the cause and filed the briefs for
appellant.
J. Scott Watson, Counsel, Federal Deposit Insurance Cor-
poration, argued the cause for appellee. With him on the
brief were Ann S. DuRoss, Assistant General Counsel, Fed-
eral Deposit Insurance Corporation, Robert D. McGillicuddy,
Senior Counsel, Roberta H. Clark, Counsel, Federal Deposit
Insurance Corporation, and Robert P. Fletcher.
Before: Wald, Williams and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Auction Company of America
("Auction Company") seeks damages for breach of contract
from the Federal Deposit Insurance Company ("FDIC") as
statutory successor to the Resolution Trust Corporation
("RTC"). It filed the first of three suits (and the one both
parties regard as controlling for limitations purposes) four
years and one day after the cause of action accrued. The
filing was too late under the District of Columbia's three-year
limitations period for contract actions, 12 D.C. Code s 301(7),
but timely under either the general six-year limitations period
for civil actions against the United States, 28 U.S.C.
s 2401(a), or the Missouri five-year contract limitations peri-
od, Mo. Ann. Stat. s 516.120(1). The district court ruled that
the federal statute did not govern and performed a choice-of-
law analysis to arrive at the D.C. limitations period. It thus
dismissed the complaint. Because we find that the federal
statute does apply, we reverse and remand without reaching
the state choice-of-law issue.
* * *
Auction Company's claim is that it entered into a contract
with the RTC, as receiver for certain failed thrifts, to auction
off key thrift assets. On September 18, 1990, after a number
of actions that according to Auction Company impeded its
efforts to organize the auction, the RTC terminated the
contract and thereby breached it. Four years and one day
later, on September 19, 1994, Auction Company filed its first
complaint.
That complaint's caption named the RTC as defendant, but
also said that the suit was against the RTC in its corporate
capacity ("RTC-Corporate"). The RTC responded with a
motion to dismiss, arguing that it was a legal entity distinct
from the RTC as Receiver and could not be sued for contrac-
tual liabilities of the RTC as Receiver. In briefing the motion
it also asserted that the statutory provisions for administra-
tive determination of claims against depository institutions,
see 12 U.S.C. s 1821(d)(3)-(13), imposed an exhaustion re-
quirement on Auction Company's contract claim. On June
15, 1995, Auction Company submitted its claim for adminis-
trative determination by the RTC as Receiver, but at the
same time protested that its contract action ran against the
RTC, not against a depository institution, and was therefore
not subject to the administrative claim allowance procedures.
12 U.S.C. s 1821(d)(5) requires the RTC as Receiver to
allow or disallow claims within 180 days. Without waiting for
the end of this period, Auction Company filed a second suit on
October 4, 1995. This complaint named the RTC as Receiver
as defendant but was in other respects identical to the first.
The RTC as Receiver moved to dismiss on the grounds that
Auction Company had not exhausted its administrative reme-
dies. On February 9, 1996, following the disallowance of its
claim by RTC as Receiver, Auction Company filed its third
suit. By this time the RTC no longer existed; its authorizing
statute provided for termination on December 31, 1995. See
12 U.S.C. s 1441a(m)(1). The FDIC, its statutory successor,
was named as defendant in the third suit and was substituted
into the first two. We do not believe this substitution affects
our analysis, and we will limit our focus to the FDIC.
All three actions were consolidated before the district
court. The FDIC moved for judgment on the pleadings
under Rule 12(c), seeking dismissal on the grounds that the
District of Columbia three-year statute of limitations for
contracts applied. Auction Company suggested instead the
six-year limitations period for civil actions against the United
States. See 28 U.S.C. s 2401(a). Alternatively, it noted that
the contract at issue contained a choice-of-law clause selecting
Missouri law, and argued that the Missouri statute of limita-
tions should govern. The district court, treating the 12(c)
motion as "essentially" one to dismiss under 12(b)(6), ruled
that the FDIC was not "the United States" for the purposes
of 28 U.S.C. s 2401(a). It thus proceeded to pick between
the D.C. and the Missouri statutes of limitation. Reviewing
de novo, we find error in the first determination and stop at
that juncture: Section 2401(a) does apply, and Auction Com-
pany's suits were timely.
* * *
28 U.S.C s 2401(a) provides that "every civil action com-
menced against the United States shall be barred unless the
complaint is filed within six years after the right of action
first accrues." The question for this appeal, broadly stated, is
whether the FDIC counts as the United States for the
purposes of this provision. The district court was impressed
by O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994), which
contains the striking phrase "the FDIC is not the United
States," id. at 85. But as the O'Melveny Court was not
interpreting 28 U.S.C. s 2401(a), or indeed any other federal
statute, this language cannot be controlling. Whether the
FDIC should be treated as the United States depends on the
context. See FDIC v. Hartford Ins. Co. of Ill., 877 F.2d 590,
592-93 (7th Cir. 1989).
In O'Melveny the FDIC as Receiver sued the counsel of a
failed savings and loan for malpractice and breach of fiduciary
duty in failing to expose frauds in the management of the
S&L. The lawyers defended on the grounds that the man-
agement was fully aware of its own frauds, and that knowl-
edge of those frauds must therefore be imputed to the S&L,
and thence to the FDIC as Receiver. The argument was a
possible winner for the lawyers under California's imputation
law, but the FDIC argued that state law should be displaced
by federal common law. Immediately after the Court's decla-
ration that the FDIC was not the United States, it twice
discounted the significance of the remark, noting that: (1)
even if the FDIC were the United States it would be begging
the question to assume that it was asserting its own rights
rather than those of the S&L; and (2) even if federal law
governed in the sense explained in United States v. Kimbell
Foods, Inc., 440 U.S. 715, 726 (1979), i.e., a sense that
includes federal adoption of state law rules, that would "not
much advance the ball." The Court decided that state law
should apply: "[T]his is not one of those extraordinary cases
in which the judicial creation of a federal rule of decision is
warranted." O'Melveny, 512 U.S. at 89.
Creating federal common law is one thing, applying a
federal statute quite another. State law will generally fill the
gaps in a comprehensive federal statutory scheme such as the
FDIC's enabling legislation, but it will not do so to the
exclusion of another applicable federal statute. See id. at 85. If s 2401(a) applies, it does so by its own terms, so long as
not contradicted by some other federal statute, not by virtue
of any lawmaking power of federal courts. On the question of
the scope of "United States" in s 2401(a), O'Melveny provides
no guidance.
So we turn to the statute itself. Section 2401(a) originated
as the internal limitations period for the Little Tucker Act.
See Christensen v. United States, 755 F.2d 705, 707 (9th Cir.
1985); Saffron v. Dep't of the Navy, 561 F.2d 938, 944-45
(D.C. Cir. 1977). That act and its big brother the Tucker Act
collectively establish jurisdiction and a waiver of sovereign
immunity for certain cases that are "against the United
States" and founded upon various bases including "any ex-
press or implied contract with the United States." For
contract cases, the Little Tucker Act gives the district courts
jurisdiction, concurrent with the Court of Federal Claims, if
the amount sought is less than $10,000. If more than $10,000
is at issue, the suits lie only in the Court of Federal Claims
under the Tucker Act proper. See 28 U.S.C. s 1346(a)(2); 28
U.S.C. s 1491; see also Saffron, 561 F.2d at 944. In the 1946
U.S. Code, the Little Tucker Act was located at 28 U.S.C.
s 41(20), which provided in part, "No suit against the Govern-
ment of the United States shall be allowed under this para-
graph unless the same shall have been brought within six
years after the right accrued for which the claim is made."
The Act of June 25, 1948 made minor changes in the wording
and relocated this language to 28 U.S.C. s 2401(a), where it
was to function as a catch-all limit for non-tort actions against
the United States.
While this shuffle expanded the function of s 2401(a), see,
e.g., Daingerfield Island Protective Society v. Babbitt, 40
F.3d 442, 445 (D.C. Cir. 1994) (applying s 2401(a) to APA
suit); Impro Products v. Block, 722 F.2d 845, 850 n.8 (D.C.
Cir. 1983) (same), the section remained applicable as ever to
Little Tucker Act suits. See, e.g., Loudner v. United States,
108 F.3d 896, 900 (8th Cir. 1997). Thus, barring some
exceptional statutory twist, the term "United States" must
have the same meaning in s 2401(a) as in the Little Tucker
Act. And hence if the FDIC as Receiver is the United States
for the Little Tucker Act, it must be also for s 2401(a).
Does the Little Tucker Act treat the FDIC as Receiver as
the United States? Jurisdiction over contract claims, under
either Tucker Act, exists only for contracts "with the United
States." If a contract with the FDIC as Receiver supports
jurisdiction under either Tucker Act, then it counts as a
contract with the United States, and the FDIC as Receiver
must be "the United States" for the Tucker Acts. So the key
question turns out to be whether a contract with the FDIC as
Receiver will allow a Tucker Act suit. If that is so, then the
equivalent meaning of "United States" in the Little Tucker
Act and its statute of limitations allows us to conclude that
the FDIC as Receiver is the United States for the purposes
of s 2401(a).
The answer to the question is yes; the Act may be invoked
whenever "a federal instrumentality acts within its statutory
authority to carry out [the government's] purposes" as long
as no other specific statutory provision bars jurisdiction.
Butz Engineering Corp. v. United States, 499 F.2d 619, 622
(Ct. Cl. 1974); see also L'Enfant Plaza Properties, Inc. v.
United States, 668 F.2d 1211, 1212 (Ct. Cl. 1982). The FDIC
concedes that the FDIC as Receiver is a federal instrumen-
tality; indeed, eager to argue that it is not an agency, it
pushes instrumentality status aggressively. See FDIC Br. at
9-10. Doctrinally, the fit is relatively easy, and in fact
contracts with the FDIC (and the RTC) have occasioned suits
under the Tucker Act.1 See, e.g., Slattery v. United States,
__________
1 These decisions have often been cursory or unclear in their
treatment of the Receiver/Corporate distinction, but the FDIC
gives us no persuasive reason why the distinction makes a differ-
ence here. The RTC as Receiver did not inherit this contract from
defunct depositories; it entered into the contract in furtherance of
its statutory mission, and the rights and obligations at issue are its
rights and obligations, not those of the depositories. Cf. O'Melve-
ny, 512 U.S. at 85-87 (discussing role of FDIC as Receiver).
35 Fed. Cl. 180 (1996) (FDIC contract); Suess v. United
States, 33 Fed. Cl. 89 (1995) (Office of Thrift Supervision and
RTC contracts). The FDIC has even argued, with some
initial success, that because it is the United States, it can only
be sued under the Tucker Act and hence in the Court of
Federal Claims. See, e.g., FDIC v. Hulsey, 22 F.3d 1472,
1480 (10th Cir. 1994) (rejecting argument); Farha v. FDIC
963 F.2d 283, 288 (10th Cir. 1992) (accepting argument).
As the FDIC as Receiver counts as the United States for
the Tucker Act, it does so for the Tucker Act (and general
federal) statute of limitations. The FDIC appears to take
refuge in the idea that the captioning of the lawsuit somehow
outweighs the functional identity of the United States and its
instrumentalities for the purposes of s 2401(a). But that
argument has been overwhelmingly rejected, by this circuit
and others, in the specific context of the application of
s 2401(a). See, e.g., Mason v. Judges of the U.S. Court of
Appeals for D.C., 952 F.2d 423, 425 (D.C. Cir. 1991) ("[A] civil
action against a federal official based on that person's official
actions is 'a civil action commenced against the United States'
under s 2401(a)."); Blassingame v. Secretary of the Navy,
811 F.2d 65, 70 (2d Cir. 1987) (discarding "fiction that an
action alleging unlawful conduct by a federal official ... and
an agency, is not an action against the United States");
Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985) (same);
Oppenheim v. Campbell, 571 F.2d 660 (D.C. Cir. 1978) (Civil
Service Commission is United States for s 2401(a)); see also
Hartford Insurance, 877 F.2d at 592 (in finding statute
assigning venue for certain cases against the FDIC as receiv-
er of national banking associations applicable even though
claimant captioned case as against the United States, asks
rhetorically, "What is 'the Federal Deposit Insurance Com-
mission as receiver' other than part of the United States?");
Portsmouth Redevelopment and Housing Auth. v. Pierce, 706
F.2d 471, 473 (4th Cir. 1983) (discussing conditions under
which action against federal agency is against United States).
In the context of the Administrative Procedure Act, to which
s 2401(a) applies, see Sierra Club v. Slater, 120 F.3d 623, 631
(6th Cir. 1997); Daingerfield, 40 F.3d at 445, the statute's
words reject the FDIC's approach: in authorizing suits for
judicial review, it lumps together suits "against the United
States, the agency by its official title, or the appropriate
officer." 5 U.S.C. s 703.
* * *
This is not a Tucker Act suit, however, nor one under the
APA. The FDIC could have argued, though it did not, that
what distinguishes a suit against an agency from a suit
against the United States is not the captioning of the com-
plaint but the operative waiver of immunity. Section 2401(a),
of course, is not limited to suits brought under the Tucker Act
or the APA, but the FDIC could have argued that waiver
under a sue-or-be-sued clause is different. Such a clause, the
argument would go, lifts the immunity of only the agency, not
the United States (assuming that that makes sense), and a
suit in district court based on such a clause is accordingly not
against the United States, even if the Tucker Act provides
alternative Court of Federal Claims jurisdiction. The parties
disagree about the source of district court jurisdiction here,
and one likely reason the FDIC did not make this argument
is that its brief locates the basis for jurisdiction in the district
court's ability to review administrative disallowances of claims
against depositories.2
The FDIC's theory of jurisdiction, however, is wrong. As
we observed earlier, supra n.1, Auction Company is not suing
to enforce a contract with a defunct depository but to enforce
one made initially and exclusively with the RTC. According-
ly, we examine this alternative argument on the basis of
Auction Company's jurisdictional theory. Auction Company
finds a waiver of sovereign immunity in FDIC's enabling
legislation, the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 ("FIRREA"), which empowers it to
sue and be sued "in any court of law or equity, State or
Federal." 12 U.S.C. s 1819(a) Fourth; see also United
States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (such
__________
2 We address this argument despite the FDIC's failure to raise it
because, in some guises, it has jurisdictional overtones. See, e.g.,
Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49,
56 (2d Cir. 1985) (source of funds to pay judgment is jurisdictional
issue).
clauses are broad waivers of immunity). And Auction Com-
pany finds subject matter jurisdiction in FIRREA's "deemer"
clause, 12 U.S.C. s 1819(b)(2)(A), which provides (with an
exception not relevant here) that all actions to which the
FDIC is a party "shall be deemed to arise under the laws of
the United States." District courts can thus hear these
actions as part of the "arising under" jurisdiction granted by
28 U.S.C. s 1331. See Osborn v. Bank of the United States,
22 U.S. (9 Wheat) 738 (1824); Williams v. Federal Land
Bank of Jackson, 954 F.2d 774, 776 (D.C. Cir. 1992).
The FDIC's argument, given these propositions, would be
that when an agency is sued in its own name pursuant to a
sue-or-be-sued clause, recovery is limited to funds within the
agency's control, and the suit is not against the United States.
A suit is against the United States, the argument goes, only if
recovery would come from general Treasury funds. This
position finds some support in the case law, beginning with
suits against the Department of Housing and Urban Develop-
ment but now reaching the FDIC and other agencies. See,
e.g., Licata v. United States Postal Service, 33 F.3d 259, 262
(3d Cir. 1994) (claim against Postal Service in its own name is
not a claim against the United States); Far West Federal
Bank v. Director, Office of Thrift Supervision, 930 F.2d 883,
890 (Fed. Cir. 1991) (same with respect to FDIC); Falls
Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49,
55 (2d Cir. 1985)(same with respect to HUD); Industrial
Indemnity, Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir. 1980)
(same with respect to HUD). Cf., e.g., Portsmouth, 706 F.2d
at 473 (suit against HUD is against United States because
HUD monies are originally Treasury funds); Marcus Garvey
Square, Inc. v. Winston Burnett Construction Co., 595 F.2d
1126, 1131 (9th Cir. 1979) (same because no separate funds
identified).
If we followed the analysis of these decisions, the FDIC
could make the argument that this suit seeks funds under
FDIC control and hence is not against the United States,
pointing perhaps to 12 U.S.C. s 1821a(d), which limits some
judgments to the assets of the FSLIC Resolution Fund. See
Far West, 930 F.2d at 889-90 (finding funds within FDIC's
control and rejecting Government argument of exclusive
Claims Court jurisdiction). But making the argument would
not even be necessary. Simply accepting the terms of the
debate--the notion that suits against the United States and
suits that may only generate judgments against specific agen-
cy funds are mutually exclusive categories--would spell victo-
ry for the FDIC. If the suit were against the United States
(and not the FDIC), sovereign immunity would bar the
district court from hearing it because the sue-or-be-sued
clause does not waive the immunity of the United States and
no other waiver allows district court jurisdiction; recast as a
Tucker Act suit, this case would have to be brought in the
Court of Federal Claims because it demands more than
$10,000. If the suit were against the FDIC (and not the
United States), s 2401(a) could not apply. Compare Ports-
mouth, 706 F.2d at 473 (finding exclusive Claims Court
jurisdiction where suit is against U.S.) with Ammcon, Inc. v.
Kemp, 826 F. Supp. 639, 643-44 (E.D.N.Y. 1993) (finding
s 2401(a) inapplicable where suit is against HUD). Because
we believe this reasoning is fundamentally confused, we avoid
it entirely and accept neither horn of the dilemma.
A demonstration of the confusion requires a brief trip into
the origins of the distinction between suits against the United
States and those against an agency. In Federal Housing
Administration, Region No. 4 v. Burr, 309 U.S. 242 (1940),
the Supreme Court noted that the statute authorizing suit
against the Federal Housing Administration specified that
claims could be paid only from funds made available to the
agency under that very statute. Id. at 250. This of course
did no more than state the unexceptionable principle that
Congress, in waiving sovereign immunity for an agency, may
limit the terms of the waiver.
As later cases picked up Burr, however, the doctrine
changed shape. Marcus Garvey Square, 595 F.2d at 1131,
restated it as the principle that a suit is against an agency
only if plaintiffs can point to agency monies to satisfy a
potential judgment. If no identifiable fund within the posses-
sion and control of the agency exists, the suit is in reality
against the United States. For this proposition, Garvey cited
Burr and the sovereign immunity classics Dugan v. Rank,
372 U.S. 609, 620 (1963), and Land v. Dollar, 330 U.S. 731,
738 (1947). The Garvey court concluded that because no such
fund could be found, Claims Court jurisdiction was exclusive
despite a sue-or-be-sued clause: Recovery would be against
the U.S. and could be had only pursuant to the Tucker Act
waiver.
It is at this point that confusion becomes evident. The
practical weakness of the idea that recovery of funds within
an agency's control is not recovery against the United States
is, we think, well exposed by the Fourth Circuit's observation
that "[t]he funds appropriated to HUD ... clearly originate
in the public treasury, and they do not cease to be public
funds after they are appropriated." Portsmouth, 706 F.2d at
473-74. Cf. Kauffman v. Anglo-American School of Sofia,
28 F.3d 1223, 1227-28 (D.C. Cir. 1994) ("[D]iversion of re-
sources from a private entity created to advance federal
interests has effects similar to those of diversion of resources
directly from the Treasury.").3
The logical fallacy is just as clear. To ascertain whether a
suit is against the United States, rather than a federal
agency, the Marcus Garvey court and similar cases have
turned to the test enunciated in Dugan and Land. See, e.g.,
Portsmouth, 706 F.2d at 473 (citing Dugan); Industrial
Indemnity, 615 F.2d at 646 (citing both); Marcus Garvey,
595 F.2d at 1131 (citing both). But this test was designed to
__________
3 The effects are similar because, regardless of the origin of the
funds, their loss forces the Government "to choose between allowing
its interests to be served less well and spending more money to
make up the shortfall." Kauffman, 28 F.3d at 1227. It may
sometimes be true, of course, that enough claims have already been
allowed against a discrete fund to exhaust it, so that allowing a new
claim will change the distribution to claimants but have no other
effect on governmental interests. That might occur where the
FDIC is merely determining claims that accrued against a deposito-
ry institution before the FDIC's appointment as receiver, and will
use only the institution's assets to satisfy the claims pro rata. As
discussed in note 1, supra, this case is different.
distinguish suits against private individuals from ones
against the sovereign; it identifies those cases in which
sovereign immunity vel non exists. See Dugan, 372 U.S. at
620; Land, 330 U.S. at 738. Federal agencies or instrumen-
talities performing federal functions always fall on the "sover-
eign" side of that fault line; that is why they possess immuni-
ty that requires waiver. To say that suits against agencies
are not against the United States in that sense is simply
wrong; to say that they are against the United States and not
the agency is to make "sue-or-be-sued" clauses nullities. The
idea that the Dugan test may be used to draw two different
lines--the line between suits against the United States and
ones against private persons, and the line between suits
against the United States and ones against its agencies--is
confused at its core and we reject it.4 The source of funds for
any recovery in this case may become an issue, but it is not
jurisdictional and does not bear on whether a suit against the
FDIC as Receiver is a suit against the United States for
purposes of s 2401(a).
* * *
So we find the argument the FDIC did not make no more
persuasive than the one it did. Focusing on the waiver of
immunity is valuable, however, because it permits a deeper
understanding of the nature of s 2401(a) and discloses a
functional rationale for its application that is perhaps more
satisfying than its historical origins in the Tucker Act. As a
consequence of the different waivers of immunity available,
plaintiffs suing the FDIC have a fairly wide choice of forum,
__________
4 Distinguishing between suits against agencies and those against
the United States would frequently be necessary if Tucker Act
jurisdiction were preemptive--that is, if Tucker Act jurisdiction by
its mere existence barred jurisdiction granted by another statute.
It does not. If a separate waiver of sovereign immunity and grant
of jurisdiction exist, district courts may hear cases over which,
under the Tucker Act alone, the Court of Federal Claims would
have exclusive jurisdiction. See Bowen v. Massachusetts, 487 U.S.
879, 910 n.48 (1988); First Virginia Bank v. Randolph, 110 F.3d 75,
77 (D.C. Cir. 1997).
at least if they sue in contract.5 They may bring suit in the
Court of Federal Claims, if they have a Tucker Act suit for
more than $10,000; they may bring a Tucker Act suit for a
lesser amount in either the Court of Federal Claims or a
district court; and they may sue in any court of law or equity
under the FDIC sue-or-be-sued clause. The question of
whether to apply 28 U.S.C. s 2401(a) comes down to whether
a specific limitations period is somehow tied to the choice of
forum.
According to the FDIC, it should be: A suit under the sue-
or-be-sued clause, naming the FDIC as Receiver, should be
subject to the appropriate state statute of limitations. A
Tucker Act suit naming the United States should be subject
to s 2401(a). What to do with a Tucker Act suit that does
not name the United States as defendant (a small but non-
empty class, see, e.g., Kline v. Cisneros, 76 F.3d 1236 (D.C.
Cir. 1996); cf. Optiperu v. Overseas Private Investment Cor-
poration, 640 F. Supp. 420, 421 (D.D.C. 1986)), is unclear.
This sort of approach might make some sense if the Tucker
Act and the sue-or-be-sued clause provided distinct causes of
action. What each provides, however, is simply a waiver of
sovereign immunity; the causes of action will be based on the
contracts at issue. Accordingly, we can see no basis for tying
the limitations period to the source of jurisdiction.
More specifically, s 2401(a) represents Congress's general
qualification--on the limitations issue--of its consent to suit
against the United States. See Saffron, 561 F.2d at 941. To
conclude that it applies, we need only find that the waiver
contained in FIRREA's sue-or-be-sued clause did not displace
it and thereby install whatever state law might fill the gap.
This we have no difficulty doing; the FIRREA sue-or-be-
sued clause does not usually operate to the exclusion of other
federal statutes. See Meyer, 510 U.S. at 476. "The courts
are not at liberty to pick and choose among congressional
enactments, and when two statutes are capable of co-
__________
5 Tort claims are different; the Federal Tort Claims Act provides
the exclusive avenue for relief where it applies. See 28 U.S.C.
s 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994).
existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard
each as effective." Morton v. Mancari, 417 U.S. 535, 551
(1974). The judgment of the district court is reversed and
the case is remanded for further proceedings consistent with
this opinion.
So ordered.