33 F.

3d 106
63 USLW 2152, 25 Bankr.Ct.Dec. 1629,
Bankr. L. Rep. P 76,045

SUNSHINE DEVELOPMENT, INC., et al., Plaintiffs,

Appellees,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, As
Liquidating Agent
for First Service Bank for Savings, Defendant, Appellant.
No. 94-1509.

United States Court of Appeals,

First Circuit.
Heard June 6, 1994.
Decided Aug. 22, 1994.

Gregory E. Gore, Counsel, with whom Ann S. DuRoss, Asst. Gen.

Counsel, Robert D. McGillicuddy, Sr. Counsel, Michelle Kosse, Counsel,
Washington, DC, Steven A. Solomon, and Backus, Meyer & Solomon,
Manchester, NH, were on brief, for appellant.
Dennis G. Bezanson, Portsmouth, NH, for appellees.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and
LAGUEUX,* District Judge.
SELYA, Circuit Judge.

This appeal requires us to determine the scope of the immunity from

injunctions granted to the Federal Deposit Insurance Corporation (FDIC) under
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA), Pub.L. 101-73, 103 Stat. 183 (Aug. 9, 1989), in the context of
bankruptcy proceedings. After sketching how Congress intended FIRREA to
operate, and clarifying the source and extent of bankruptcy courts' powers to
manage the estates of debtors whose fates are intertwined with the affairs of
failed financial institutions, we conclude that the court below lacked the

authority to restrain the FDIC in the exercise of its lawful statutory powers.
Accordingly, we reverse.
I.
Background
2

The facts essential to an understanding of this appeal are not disputed. Between
1985 and 1988, First Service Bank for Savings made a total of seven separate
loans to Sunshine Development, Inc. in connection with various projects,
including Salisbury Pasture (Franklin, New Hampshire), Brightside Place
(Derry, New Hampshire), and 154 Webster Street (Hudson, New Hampshire).
The debt (much of which remains unpaid) is evidenced by three promissory
notes. The notes are cross-collateralized and secured by mortgages
encumbering all three pieces of property.

* Neither lender nor borrower survived the collapse of the New England real
estate market. A year after the last loan had been made, First Service was
declared insolvent. On March 31, 1989, the FDIC was appointed as liquidating
agent (and thereby became the owner and holder of the notes). On November
24, 1989, Sunshine petitioned for voluntary reorganization under Chapter 11 of
the Bankruptcy Code. The FDIC seasonably filed a proof of claim in the
bankruptcy court, asserting secured claims amounting to $4,948,203.87. In
April of 1991, the FDIC petitioned the bankruptcy court for relief from the
automatic stay, see 11 U.S.C. Sec. 362(d)(1) & (2), so that it might initiate
foreclosure proceedings against the properties. Among other things, the FDIC
asserted that during the prior two years Sunshine had failed to pay required real
estate taxes and insurance premiums. The bankruptcy court granted the FDIC's
petition on July 1, 1991. No appeal ensued.

On July 31, 1992, the FDIC filed an amended proof of claim in the bankruptcy
court. In March of 1993, the court converted Sunshine's bankruptcy into a
Chapter 7 case and appointed a trustee.1 On July 20, 1993, the FDIC amended
its proof of claim once again. Throughout, the FDIC, for reasons not
illuminated in the record, abjured any attempt to foreclose on the mortgages
that it held.

B
5

Prior to any insolvency, the bank and the developer parted company. Each sued
the other. In one suit, the bank sought to collect principal and interest due under
the notes; in the other, the borrower sought to recover damages from the bank

on various lender liability theories. These suits, though begun in 1988,

remained dormant for some time. In 1991, the district court consolidated them
and eventually referred the ongoing litigation to the bankruptcy court.
6

The bankruptcy court repackaged the litigation and brought it to a head.

Following a two-week trial that ended in May of 1992, a jury not only decided
that Sunshine owed nothing to the FDIC as the bank's successor in interest, but
also decided that Sunshine deserved $2,000,000 in damages. The bankruptcy
court disagreed. It set aside the jury verdict and entered judgment in favor of
the FDIC, against Sunshine, for $2,717,856.12. 2 Sunshine appealed to the
district court on February 12, 1993. See 28 U.S.C. Sec. 158(a). The appeal
(which we shall term "the Merits Appeal") is still pending in that court.

C
7

The pot came to a boil when the FDIC scheduled a foreclosure sale of all three
properties for May 11, 1994. Alarmed at the prospect of foreclosure before the
Merits Appeal had been decided,3 appellees petitioned the bankruptcy court for
injunctive relief to pretermit the proposed foreclosure sale. For whatever
reason, the bankruptcy court referred the petition to the district court. That
court asked a magistrate-judge for a report and recommendation. See
Fed.R.Civ.P. 72(b). Proceeding on the mistaken presumption that the automatic
stay remained in force, the magistrate recommended issuance of a temporary
restraining order aimed at halting the foreclosure.

The FDIC immediately objected to the recommendation. See id. It noted the
magistrate's mistake and again asserted, citing FIRREA's anti-injunction
provision, that the district court lacked the authority to grant the requested
relief. The district court held a hearing one day before the scheduled
foreclosure sale. In the course of the hearing, the parties acknowledged the
magistrate's bevue and agreed that the automatic stay had been dissolved
almost three years earlier. The district judge nonetheless enjoined the FDIC
from foreclosing on the properties pending determination of the Merits
Appeal.4 The judge did not state the basis for his order.

II.
Standard of Review
9

Black letter law in this circuit instructs that district courts ordinarily are to
determine the appropriateness of granting or denying a preliminary injunction
on the basis of a four-part test that takes into account (1) the movant's

likelihood of success on the merits, (2) the potential for irreparable injury, (3) a
balancing of the relevant equities, and (4) the effect on the public interest. See
Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991); Aoude v.
Mobil Oil Corp., 862 F.2d 890, 892 (1st Cir.1988). This formulation can only
be used in circumstances in which the district court is empowered to issue an
injunction. It is this antecedent question--the question of judicial power,
sometimes called "jurisdiction"--that comprises the centerpiece of this appeal.
Consequently, while we ordinarily review a district court's decision to grant or
deny injunctive relief under a deferential abuse-of-discretion standard, see, e.g.,
Narragansett Indian Tribe, 934 F.2d at 5, this appeal--which presents a pure
question of law--engenders de novo review. See McCarthy v. Azure, 22 F.3d
351, 354 (1st Cir.1994); Liberty Mut. Ins. Co. v. Commercial Union Ins. Co.,
978 F.2d 750, 757 (1st Cir.1992); see also Narragansett Indian Tribe, 934 F.2d
at 5 (explaining that an injunction may be overturned based on either "a
mistake of law or an abuse of discretion").
10

The standard of review is particularly important because this case has a curious
twist. The magistrate's recommendation was premised on a mistaken fact, the
parties explicitly informed the district court of the error, and the court, though
cognizant that the magistrate's reasoning was flawed, issued its own order
without any accompanying explanation. Thus, we are very much in the dark as
to the district court's thinking. In the end, however, it is not necessary that we
remand. Since we review the legal issue de novo, access to the district court's
rationale is not a prerequisite to appellate review.5 Withal, the absence of any
articulated reasoning below as to this controlling issue both increased the risk of
error--an unexplained ruling being more likely to be a poorly considered one-and reduced this court's (and the parties') opportunities to benefit from the
lower court's analysis.

III.
Discussion
11

This case turns on the construction and interplay of several provisions of the
statutes that define the powers of the FDIC and the bankruptcy courts,
respectively. In each instance, our starting point is the statutory text. See United
States v. Gibbens, 25 F.3d 28, 33 (1st Cir.1994).

12

* FIRREA constitutes a vital part of the federal government's response to the

savings-and-loan crisis that rocked the nation in the latter half of the last
decade. The method of the statute involves, among other things, "establish[ing]
organizations and procedures to obtain and administer the necessary funding to

resolve failed thrift cases and to dispose of the assets of [those] institutions...."
H.R.Rep. No. 101-54(I), 101st Cong., 1st Sess. (1989), reprinted in 1989
U.S.C.C.A.N. 86, 103. To this end, FIRREA gives the FDIC unprecedented
powers so that it may function efficaciously as a receiver or conservator of
insolvent financial institutions. See Telematics Int'l, Inc. v. NEMLC Leasing
Corp., 967 F.2d 703, 705 (1st Cir.1992) (explaining that FIRREA is designed
to "enable the FDIC to move quickly and without undue interruption to
preserve and consolidate the assets of the failed institution"); see also 12 U.S.C.
Sec. 1821(d)(2)(B) (giving the FDIC wide-ranging powers to take over the
assets of, and operate, an insured depository institution that fails); see generally
H.R.Rep. No. 101-54(I), supra, 1989 U.S.C.C.A.N. at 126-29.
13

One major component of the statutory scheme is 12 U.S.C. Sec. 1821(j). It

states that, with exceptions not relevant here, "no court may take any action,
except at the request of the Board of Directors [of the FDIC] by regulation or
order, to restrain or affect the exercise of powers or functions of the [FDIC] as a
conservator or a receiver." Id. By its terms, then, section 1821(j) is an antiinjunction measure, preventing courts from issuing orders that unduly inhibit
the FDIC in the exercise of its statutory powers.6

14

Since the injunction issued below unabashedly restrains and affects the FDIC,
acting in its capacity as a receiver, our inquiry reduces to whether the activity
that the injunction kept the FDIC from pursuing falls within the FDIC's powers
under FIRREA. This inquiry is actually composed of two subsidiary questions:
(1) As a general matter, does the FDIC have the power to foreclose? (2) If so,
does that power extend to the estate of a bankrupt debtor?

B
15

The answer to the first query is patently in the affirmative. Congress has given
the FDIC broad authority "to take over the assets ... and conduct all business of
the institution," to "collect all obligations and money due the institution," and to
"preserve and conserve the assets and property of such institution." 12 U.S.C.
Sec. 1821(d)(2)(B)(i), (ii), and (iv). As receiver, the FDIC may "place the
insured depository institution in liquidation and proceed to realize upon the
assets of the institution," 12 U.S.C. Sec. 1821(d)(2)(E), "transfer any asset or
liability of the institution," id. Sec. 1821(d)(2)(G)(i)(II), and, in addition to the
specific powers granted under these statutes, it may "exercise * * * such
incidental powers as shall be necessary" to carry out its stated powers, id. Sec.
1821(d)(2)(J)(i).

16

Taken in the ensemble, this broad array of powers easily encompasses the grant

of a general power to foreclose on properties that the failed institution held as

collateral. See Lloyd v. FDIC, 22 F.3d 335, 336 (1st Cir.1994) (interpreting
these statutes as affording the FDIC the "power as receiver to foreclose on the
property of a debtor"); see also 281-300 Joint Venture v. Onion, 938 F.2d 35,
39 (5th Cir.1991) (holding that "the ability of the conservator to foreclose on
the property of a debtor [is] a power that Congress gave to [agencies like the
FDIC] under FIRREA"), cert. denied, --- U.S. ----, 112 S.Ct. 933, 117 L.Ed.2d
105 (1992); Abbott Bldg. Corp. v. United States, 951 F.2d 191, 194 (9th
Cir.1991) (similar). Therefore, in a run-of-the-mill case, a district court lacks
the authority to enjoin the FDIC, acting lawfully as a receiver, from foreclosing
on security that it holds. See Lloyd, 22 F.3d at 336-37 (holding that district
courts lack jurisdiction to enjoin the FDIC, acting as receiver, from foreclosing
on a debtor's property); Telematics, 967 F.2d at 706 (refusing to enjoin the
FDIC from foreclosing on a certificate of deposit because section 1821(j) "must
be accorded its ordinary meaning"); see also Sweeney v. RTC, 16 F.3d 1, 6 (1st
Cir.1994) (per curiam) (explaining that section 1821(j) bars an injunction
designed to block an imminent nonjudicial foreclosure scheduled by the RTC);
281-300 Joint Venture, 938 F.2d at 39 (holding that under section 1821(j) "the
courts lack the ability to enjoin nonjudicial foreclosures that are within the
statutory powers" of the RTC qua receiver).
C
17

The second query--whether the FDIC's power to foreclose extends to the

context of bankruptcy proceedings--requires us to examine appellees' hydraheaded assertion that the debtor's bankruptcy removes the FDIC's proposed
foreclosure here from the mine-run, and vests the federal courts with injunctive
powers that would be lacking in respect to other FDIC foreclosure initiatives.
Answering this second query is more complicated, for the statutes defining the
authority of the FDIC form only part of the relevant legal universe; the statutes
governing bankruptcy matters also must be consulted. We devote the next two
sections of this opinion to the task of answering this second query.

18

It is not disputed that the three properties on which the FDIC seeks to foreclose
constituted property of the debtor as of the date of bankruptcy and are thus
property of the estate. See 11 U.S.C. Sec. 541(a)(1) (explaining that the
bankruptcy "estate is comprised of ... all legal or equitable interests of the
debtor in property as of the commencement of the case"). As Sunshine correctly
points out, the district court obtained jurisdiction over those properties by virtue
of 28 U.S.C. Sec. 1334. Pursuant to 28 U.S.C. Sec. 1334(d), "[t]he district court
in which a case under Title 11 is commenced or is pending shall have exclusive
jurisdiction of all the property, wherever located, of the debtor as of the

commencement of such case, and of property of the estate." Id.; see also 28
U.S.C. Sec. 1334(a) (giving district court "original and exclusive jurisdiction of
all cases under title 11").
19

Sunshine argues that this statutory mosaic also infuses the district court and/or
the bankruptcy court with power to enjoin the FDIC.7 This argument builds on
the theory that, as a general proposition, a bankruptcy court may issue
injunctions to protect its exclusive jurisdiction over estate property. See 11
U.S.C. Sec. 105(a) (empowering bankruptcy courts to "issue any order, process,
or judgment that is necessary or appropriate to carry out the provisions of this
title"); see also In re Olympia Holding Corp., 141 B.R. 443, 446
(Bankr.M.D.Fla.1992) (relying on the jurisdictional grant contained in 28
U.S.C. Sec. 1334(d) and the grant of protective powers contained in 11 U.S.C.
Sec. 105 to issue an injunction to safeguard estate property). And this
proposition, Sunshine says, must mean that the bankruptcy court possesses the
power to enjoin the FDIC when it is necessary to do so in order to preserve the
assets of the bankruptcy estate.

20

We do not think that the appellees' argument proves their point. Rather, it
serves merely to highlight the tension that exists between FIRREA's antiinjunction provision, on one hand, and the bankruptcy laws, on the other hand.
But this tension does not mean that the statutes are in irreconcilable conflict. As
we explain below, they are not.

21

The preferred approach to statutory construction dictates that a reviewing court

first determine if the perceived conflict between two laws is real. See
Connecticut Nat'l Bank v. Germain, --- U.S. ----, ----, 112 S.Ct. 1146, 1149, 117
L.Ed.2d 391 (1992) (cautioning that courts confronted by arguably conflicting
statutes must give effect to both, where possible). Here, the perceived conflict
is more apparent than real, for the statutes can be reconciled. The key to
harmonizing them lies with 11 U.S.C. Sec. 362.

22

Section 362 of the Bankruptcy Code is an "automatic stay" provision. It

provides in substance that filing a bankruptcy petition activates an automatic
stay. That applies, inter alia, to the commencement or continuation of most
judicial actions or proceedings against the debtor to obtain possession of
property of the estate. 11 U.S.C. Sec. 362(a)(1), (3). Foreclosure constitutes an
action or proceeding against the debtor within the purview of this law. Hence,
attempts to foreclose come within the statutory sweep and are banned unless
and until the automatic stay is lifted, see id. Sec. 362(d). Thus, no person or
entity has a choate power to foreclose on property belonging to a bankrupt's
estate so long as the automatic stay is in place.

23

We see no basis for exempting the FDIC from the strictures of this regime
when it is acting as a receiver or conservator.8 Because the automatic stay is
exactly what the name implies--"automatic"--it operates without the necessity
for judicial intervention. Consequently, the stay's curtailment of the FDIC's
power does not run afoul of FIRREA's anti-injunction provision, which only
prohibits "court ... action ... to restrain or affect the exercise of powers or
function of the [FDIC] as a ... receiver." 12 U.S.C. Sec. 1821(j) (emphasis
supplied). On that basis, we are confident that the automatic stay does not
violate FIRREA's anti-injunction provision because it arises directly from the
operation of a legislative enactment, not by court order. Accord In re Colonial
Realty Co., 980 F.2d 125, 137 (2d Cir.1992); Gross v. Bell Sav. Bank, 974 F.2d
403, 407 (3d Cir.1992).

24

The automatic stay works in tandem with the statutes on which Sunshine relies.
The broad jurisdictional grant of 28 U.S.C. Sec. 1334 is designed to centralize
proceedings in the bankruptcy court, and 11 U.S.C. Sec. 105 is designed to
permit the court to protect that jurisdictional grant. The automatic stay furthers
this policy by preventing different creditors from bringing different proceedings
in different courts, thereby setting in motion a free-for-all in which opposing
interests maneuver to capture the lion's share of the debtor's assets. "The stay
insures that the debtor's affairs will be centralized, initially, in a single forum in
order to prevent conflicting judgments from different courts and in order to
harmonize all of the creditors' interests with one another." In re Colonial Realty,
980 F.2d at 133 (citation omitted) (emphasis supplied).

25

Nonetheless, the automatic stay does not always operate in perpetuity. While
the stay ensures that most matters related to the debtor's estate will come under
the wing of a single bankruptcy court in the first instance,9 further provisions of
the same statute permit the bankruptcy court to relax the automatic stay under
enumerated conditions. See 11 U.S.C. Sec. 362(d)-(g). Once relief from the
stay is granted, an "action or proceeding against the debtor that was or could
have been commenced before the commencement of the [bankruptcy] case"
may go forward. Id. Sec. 362(a). In other words, by granting relief from the
automatic stay the bankruptcy court effectively yields the exclusive control
over the debtor's estate initially accorded to it by section 1334(d).

26

With all pieces in place, the assembled doctrinal puzzle looks like this: the
jurisdictional grant and the automatic stay work together to centralize nearly all
claims relating to the bankrupt estate in the bankruptcy court. While the
legislatively mandated stay is in place, the FDIC, like any other creditor, is
fully subject to it. If at this point the FDIC were to ignore the stay and initiate a
foreclosure proceeding, the bankruptcy court would be acting within its

authority to issue an injunction. After all, FIRREA's anti-injunction provision,

12 U.S.C. Sec. 1821(j), only prohibits court actions restraining FDIC's exercise
of its lawful powers or functions. See 281-300 Joint Venture, 938 F.2d at 39.
27

Once the bankruptcy court grants the FDIC relief from the automatic stay,
however, the court surrenders the preferred position that Congress carved out
for it. At that juncture, FIRREA's anti-injunction provision comes into play.
Thereafter, without the automatic stay in place, the bankruptcy court, like any
other court, is prevented from taking "any action ... to restrain or affect the
exercise of powers or functions of the [FDIC] as a conservator or receiver." 12
U.S.C. Sec. 1821(j). So viewed, the statutes under consideration do not conflict.

28

We thus answer the second of our two questions affirmatively and hold that
FIRREA's anti-injunction provision, 12 U.S.C. Sec. 1821(j), applies in the
bankruptcy milieu. That ends this phase of our inquiry. In this case, relief from
the automatic stay had been obtained long before the FDIC instituted
foreclosure proceedings, and Sunshine had not appealed. Consequently, the
bankruptcy court had surrendered its exclusive control over the properties and,
in the face of FIRREA's anti-injunction provision, could not then reverse
direction and restrain the FDIC from going forward.10D

29

In a related vein, the appellees also suggest that section 1334(b) gives the
bankruptcy court power to grant an injunction against the FDIC, FIRREA
notwithstanding.11 Appellees' reliance on this provision is misplaced.

30

We need not wax longiloquent. The Supreme Court rebuffed a strikingly similar
interpretation of section 1334(b) in Board of Governors v. MCorp Financial,
Inc., 502 U.S. 32, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). There, the debtor
contended that section 1334(b) gave a bankruptcy court concurrent jurisdiction
that empowered it to enjoin ongoing administrative proceedings of the Federal
Reserve Board, despite a specific statutory provision precluding injunctions in
such circumstances. The Court rejected the debtor's argument, holding that
section 1334(b) "concerns the allocation of jurisdiction between bankruptcy
courts and other 'courts' " and that "an administrative agency such as the Board
is not a 'court'." MCorp, 502 U.S. at ----, 112 S.Ct. at 465. Section 1334(b) is
similarly inapplicable to a nonjudicial foreclosure proceeding undertaken by the
FDIC (which, like the Federal Reserve Board, is not a "court").12

E
31

The appellees have one more shot in their sling. They strive to persuade us that,

regardless of FIRREA's anti-injunction provision, authority to enjoin the FDIC

can be found in the bankruptcy court's general equitable jurisdiction, to which
the FDIC subjected itself by filing proofs of claim and litigating in the
bankruptcy court. For this thesis, appellees rely almost exclusively on the
bankruptcy court's reasoning in In re Tamposi Family Inv. Properties, 159 B.R.
631 (Bankr.D.N.H.1993). But the reasoning of the Tamposi court cannot
withstand scrutiny.13
32

There, the debtors brought adversary complaints against the FDIC under 11
U.S.C. Sec. 547(b), seeking to avoid transfers that had been made to the failed
bank less than ninety days before the debtors declared bankruptcy. See
Tamposi, 159 B.R. at 632-33. The FDIC contended that the bankruptcy court
lacked subject matter jurisdiction under 12 U.S.C. Sec. 1821(d)(13)(D), a
FIRREA provision stating that "no court shall have jurisdiction over ... [a]ny
claim or action for payment from ... the assets of any depository institution for
which the [FDIC] has been appointed receiver...." The Tamposi court rejected
the FDIC's contention because "by filing a proof of claim in a bankruptcy
proceeding, the creditor/claimant submits itself to the process of allowance and
disallowance of claims which is at the heart of a bankruptcy court's subject
matter jurisdiction." Tamposi, 159 B.R. at 634.

33

The Tamposi court's reasoning leaves much to be desired. In the first place, the
bankruptcy court, 159 B.R. at 636, misread our opinion in Marquis v. FDIC,
965 F.2d 1148 (1st Cir.1992). In Marquis, we held that federal courts retain a
modicum of subject matter jurisdiction over actions pending against failed
financial institutions even after the FDIC has been appointed as receiver,
notwithstanding the jurisdictional bar of 12 U.S.C. Sec. 1821(d)(13)(D) (a
FIRREA accouterment providing that "no court shall have jurisdiction over ...
any claim or action for payment from, or any action seeking a determination of
rights with respect to, the assets of any depository institution for which the
[FDIC] has been appointed receiver"). See id. at 1155. We arrived at this
holding as a matter of statutory interpretation, stressing other language in
FIRREA that addresses claimants' rights "to continue any action which was
filed before appointment of a receiver," 12 U.S.C. Sec. 1821(d)(5)(F)(ii).
Moreover, we specifically limited the reach of the Marquis holding to actions
pending in a federal court prior to the FDIC's appointment as receiver or
conservator. See id. at 1154.

34

The Tamposi court ignored this limitation. Instead, it erroneously asserted that
whether proceedings were pending at the time of the FDIC's appointment "is
irrelevant under the logic of Marquis." Tamposi, 159 B.R. at 636. This assertion
is incorrect: the holding in Marquis cannot be transplanted root and branch to a

wider class of cases. Specifically, the holding is inapposite in the Tamposi

context--and it is similarly inapposite here.
35

The second problem with the reasoning of Tamposi is that the opinion places
too great a premium on a trio of Supreme Court cases not involving the FDIC.
Each of these cases stands for the somewhat mundane proposition that "by
filing a claim against a bankruptcy estate the creditor triggers the process of
allowance and disallowance of claims, thereby subjecting himself to the
bankruptcy court's equitable powers." Langenkamp v. Culp, 498 U.S. 42, 44,
111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990) (citation and internal quotation
marks omitted); accord Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 59 n.
14, 109 S.Ct. 2782, 2799 n. 14, 106 L.Ed.2d 26 (1989) (noting that "by
submitting a claim against the bankruptcy estate, creditors subject themselves to
the court's equitable power to disallow those claims"); Katchen v. Landy, 382
U.S. 323, 329-30, 86 S.Ct. 467, 472-73, 15 L.Ed.2d 391 (1966) (similar). We
do not doubt that this proposition pertains to the FDIC--but staking the farm on
it for present purposes begs the question of what equitable powers the
bankruptcy court possesses vis-a-vis particular litigants.

36

Once the question is properly framed, the FDIC's involvement makes a

dispositive difference. The bankruptcy court is a creature of statute, and
Sunshine has not suggested that it is beyond Congress's lawful powers to limit
the remedies available to that court or to remove selected matters from its
jurisdiction. Here, Congress exercised that very power, limiting the authority of
all courts--the bankruptcy court included--to enjoin the FDIC. The general
proposition that filing a proof of claim subjects a party to the bankruptcy
court's equitable jurisdiction cannot be read in isolation, but, rather, must be
read in conjunction with the specific statutory language, contained in section
1821(j), that Congress subsequently saw fit to write. Cf. Vimar Seguros Y
Reaseguros, S.A. v. M/V SKY REEFER, 29 F.3d 727, 732 (1st Cir.1994)
(explaining that a specific, later-enacted statute "ordinarily controls the
general") (collecting cases); Watson v. Fraternal Order of Eagles, 915 F.2d 235,
240 (6th Cir.1990) (same).

37

Finally, and relatedly, to accept the Tamposi court's reasoning would be to

stand FIRREA on its ear. After all, once a party declares bankruptcy, a
creditor's principal recourse to money owed is by filing proofs of claim in the
bankruptcy court. Under the Tamposi regime, when the FDIC as receiver or
conservator is also a creditor of a bankrupt, the FDIC must either elect to forgo
its claim or to waive its statutory protections. In the most auspicious of
circumstances, we would be reluctant to read section 1821(j) as constructing so
perverse a paradigm.

38

Here, the circumstances are anything but auspicious, for the statute is prefaced
by the phrase "Except as otherwise provided in this section...." This language
serves to identify those occasions on which the anti-injunction provision lacks
force. See, e.g., Secs. 1821(c)(7), 1821(c)(8)(C). When, as now, a law itself
contains an enumeration of applicable exemptions, the maxim "expressio unius
est exclusio alaterius" ordinarily applies. Under that maxim, a legislature's
affirmative description of certain powers or exemptions implies denial of
nondescribed powers or exemptions. See Continental Cas. Co. v. United States,
314 U.S. 527, 533, 62 S.Ct. 393, 396, 86 L.Ed. 426 (1942); Park Motor Mart,
Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see generally 2A
Norman J. Singer, Sutherland Stat. Const. Sec. 47.23, at 216-17 (5th ed. 1992).
So it is here.

IV.
Conclusion
39

We need go no further. There is no conflict between the statutory provisions

defining the bankruptcy courts' jurisdiction and the FDIC's powers while the
automatic stay is in place. When and if a bankruptcy court grants relief from
the stay for a particular purpose, however, the FDIC's powers, which in this
regard are spelled out by FIRREA's recent, clear, and specific language, come
to the fore and trump the residual powers of the courts. Had the court below
correctly understood the interface between the relevant statutory schemes, it
would have realized that, because the automatic stay had been dissolved, the
appellees were requesting relief of a kind that, 18 U.S.C. Sec. 1821(j)
considered, exceeded the district court's authority. Consequently, the injunction
issued by the lower court may not stand.

40

Reversed.

Of the District of Rhode Island, sitting by designation

We henceforth refer to the debtor and its trustee in bankruptcy collectively as

"Sunshine" or "appellees."

At trial, the FDIC claimed that the borrower owed roughly $3,951,000.
Sunshine contested a fraction of the debt (on the basis that First Service failed
properly to credit certain interim payments), admitted that the remainder was
due, and sought to set off damages allegedly owed on the lender liability claims
against the balance. The bankruptcy court's award represents the portion of the

underlying debt that Sunshine did not controvert

3

Sunshine apparently feared, inter alia, that if the properties were sold in
foreclosure and it subsequently prevailed on its lender liability claims, it
effectively would have lost the right of setoff, and, instead, would be merely a
general unsecured creditor of the receivership. We take no view either of the
legitimacy of these fears or of the parties' rights, should they materialize

The Merits Appeal is pending before a different district judge. At oral

argument, the parties informed us that it was heard and taken under advisement
on May 24, 1994

We wish to make it crystal clear that we prize the thinking of the district courts
and encourage district judges to state the basis for their rulings whether or not
they are legally required to do so. While our review of legal questions is de
novo, we remain an appellate tribunal with the function of reviewing what
another court has already done: the thinking and analysis of that earlier
tribunal--even when, on consideration, we disagree with it--is integral to the
judicial process within which both courts are engaged

Subject to enumerated exceptions, see 12 U.S.C. Sec. 1441a(b)(5), the

Resolution Trust Corporation (RTC), when operating as a receiver, enjoys the
same powers, and is subject to the same FIRREA protections, as the FDIC. See
12 U.S.C. Sec. 1441a(b)(4). Of particular interest here, section 1821(j) applies
equally to both agencies. Consequently, we will refer freely to cases involving
the RTC to illuminate section 1821(j)'s reach in respect to the FDIC

Despite the fact that the district court issued the injunction in this instance, the
litigants argue the case primarily in terms of the bankruptcy court's power to
enjoin the FDIC. We agree that, for purposes of this appeal, the district court
and the bankruptcy court can be treated interchangeably

To be sure, 11 U.S.C. Sec. 362(b)(4) provides that the automatic stay does not
reach proceedings undertaken to enforce a "governmental unit's police or
regulatory power." But when the FDIC operates as a receiver or conservator, it
does not exercise "regulatory power" within the meaning of this statute. See
generally Howell v. FDIC, 986 F.2d 569, 574 (1st Cir.1993) (distinguishing
between FDIC acting in its corporate capacity as a regulator and in its capacity
as a receiver)

In the interests of accuracy, we note that certain property is excepted from the
operation of the automatic stay. See 11 U.S.C. Sec. 362(b). This exception has
no relevance for present purposes

10

We are not aware of any instance involving either the FDIC or the RTC in
which a court reinstated the automatic stay after having granted a party relief
from it. We leave for another day the dichotomous question whether
reinstatement of a section 362(a) stay vis-a-vis the FDIC would be possible, and
if so, whether such reinstatement would constitute "court action" violative of 12
U.S.C. Sec. 1821(j). We likewise express no opinion as to whether judicial
implementation of a stay pursuant to Bankruptcy Rule 8005 might run afoul of
section 1821(j)

11

The statute provides:

Notwithstanding any Act of Congress that confers exclusive jurisdiction on a
court or courts other than the district courts, the district courts shall have
original but not exclusive jurisdiction of all civil proceedings arising under title
11, or arising in or related to cases under title 11.
28 U.S.C. Sec. 1334(b).

12

This case presents a relatively easy question involving an ill-starred effort to

apply section 1334(b) to nonjudicial proceedings instituted by an administrative
agency. We intimate no opinion regarding that section's applicability vel non to
the FDIC in other settings

13

It is important to note that, although Tamposi's reasoning is flawed, the result

in the case may be defensible. See, e.g., In re Parker North Amer. Corp., 24
F.3d 1145, 1155-56 (9th Cir.1994) (holding that section 1821(d)(13)(D) does
not bar a bankruptcy court from hearing a preference action against the RTC)