Fed. Sec. L. Rep. P 95,476in Re Franklin National Bank Securities Litigation et al., Plaintiffs,andfederal Deposit Insurance Corporation, Plaintiff-appellee, v. Raymond T. Andersen et al., Defendants,andloews Corporation, Defendant-appellant, 532 F.2d 842 (2d Cir. 1976)

We hold in a case of first impression that the Federal Deposit Insurance Corporation (FDIC) may by virtue of its statutory authority, 12 U.S.C. § 1819(4),¹  and its status as a receiver of a national bank,²  remove a derivative suit to federal court despite the fact that its interest in the litigation is as a party plaintiff and only a "defendant or defendants" may remove generally under 28 U.S.C. §§ 1441(a), 1446.³  We agree with the United States District Court for the Eastern District of New York, Orrin G. Judd, Judge, on the question certified to us before trial,⁴  that the court has subject matter jurisdiction over the removed action, and we remand the case for further proceedings.

The facts, arising out of the insolvency of the Franklin National Bank (the Bank) and the bankruptcy of its parent corporation, Franklin New York Corporation (the Parent), may be simply stated. Suit was brought in state court by a stockholder of the Parent against directors and officers of both the Parent and the Bank for permitting a Mr. Sindona and a corporation of his, FASCO International Holding, S.A., Ltd. (FASCO), to obtain control of the Bank. It was alleged that the Bank, as a result of Mr. Sindona's control, made improvident loans, underwritings and foreign exchange transactions. Loews Corporation was a party defendant, is the sole appellant here and is charged with selling 22 per cent of the Parent's stock to Sindona and FASCO without proper investigation of their true intent, which allegedly was to milk the Parent and the Bank. The action is thus both a derivative action on behalf of the Parent and a double derivative action on behalf of the Bank.⁵ 

After FDIC's appointment as a receiver for the Bank upon declaration of its insolvency, FDIC was substituted as a defendant in place of the Bank and duly filed a petition for removal under 12 U.S.C. § 1819(4), note 1 supra. Because it is acting as the representative for the party on whose behalf the derivative suit was brought, Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 522-23, 67 S. Ct. 828, 830-31, 91 L. Ed. 1067, 1072-73 (1947), the FDIC has also moved the court to be realigned as a party plaintiff in the action. The district court held that the special removal statute, 12 U.S.C. § 1819(4), permits removal of "any" suit to which the FDIC is "a party" regardless of its alignment as a plaintiff or defendant. The court relied on Federal Savings & Loan Insurance Corporation (FSLIC) v. Quinn, 419 F.2d 1014 (7th Cir. 1969) (parallel statute, 12 U.S.C. § 1730(k) (1), governing FSLIC permitted removal of "independent" counterclaim asserted against FSLIC), and the fact that prior to the 1966 amendment to § 1819,⁶  which included the special power to remove "any . . . action" filed in state court in which the FDIC is a "party," the FDIC already had the limited power as a party defendant to remove cases under the general removal statute, 28 U.S.C. § 1446, note 3 supra. To give some effect to the language in the 1966 amendment, Judge Judd found it necessary to construe the section as permitting the FDIC to remove "any . . . action" even though the FDIC is a party plaintiff in the state court. While we do not find the same solace in Quinn as the district court did, see 419 F.2d at 1018 n. 4, we nonetheless agree with the court's construction of § 1819.

While we receive little or no help from the meager reported legislative reports on the 1966 amendment of § 1819,⁷  the fact is that prior to 1966 the FDIC could remove from state courts only under the limited power of removal afforded to defendants by the general removal statutes. By making the power to remove specific in the FDIC statute and including within the power "any such action, suit or proceeding," we must assume that Congress intended to accomplish something which it had not done with the words of the old statute. We think that was, in the plain words of the statute, to permit removal of any suit "to which the Corporation shall be a party," whether as a defendant or a subrogated or a realigned derivative suit plaintiff. Congress necessarily had in mind the dual capacity of the FDIC as an insurer of customers' deposits and as receiver of an insolvent bank; it must have been aware of the likelihood in the case of bank insolvency, real or threatened, of derivative suits against directors and officers and the putative role of the FDIC therein as a party plaintiff. And surely it was aware of the advantages that might accrue to the FDIC by intervention in those suits, as for example if service over a foreign defendant had been obtained.

The legislative history of the overall 1966 legislation supports the proposition that Congress was acutely aware of the problem of a director and officer engaging in "unsafe or unsound practices or a breach of his fiduciary duties" causing "substantial financial loss or damage to the institution or its depositors or savers . . . ." S.Rep.No.1482, 89th Cong., 2d Sess. (1966); 1966 U.S.Code Cong. & Admin.News, pp. 3532, 3533. Indeed, one of the principal purposes of the legislation was to "grant to the Federal agencies supervising banks and savings and loan associations (including the FDIC) authority to issue cease-and-desist orders or suspension or removal orders (pertaining to such officers and directors) . . . to prevent . . . unsafe and unsound practices . . . ." Id. It is but a step to recognize that it might become essential for the FDIC to pursue legal claims against those directors or officers in the courts that have been commenced by others. It is certainly logical that those claims involving national banks be pursued by the insuring agency in the federal courts. As the receiver for a national bank appointed by the Comptroller of the Currency pursuant to 12 U.S.C. § 1821(c), the FDIC has the duty of enforcing the directors' and officers' obligations. 12 U.S.C. § 1821(d).

In its consideration of the 1966 amendments, Congress knew full well how to limit the agency's power of removal to situations in which it was a defendant in the state court proceedings. For example, the removal statute which applies in cases involving the Federal Reserve banks (agencies which do not insure customers' deposits), unlike the removal statutes applying to the FDIC and FSLIC (agencies which do insure customers' deposits), specifically limits removal to instances where the Federal Reserve bank is a "defendant" in the state court. Compare 12 U.S.C. § 632 (removal where Federal Reserve bank is "defendant") with 12 U.S.C. § 1819(4) (removal of any action where FDIC is a party) and 12 U.S.C. § 1730(k) (removal of any action where FSLIC is a party). See note 7 supra. Perhaps Congress had in mind the necessity, insofar as these insuring agencies were concerned, of avoiding the "exercises in procedural dialectics," as Mr. Justice Frankfurter put it, Chicago, Rock Island & Pacific Railroad Co. v. Stude, 346 U.S. 574, 586, 74 S. Ct. 290, 297, 98 L. Ed. 317, 329 (1954) (dissenting opinion), in which the courts sometimes had engaged relative to abstruse removal questions. See, e. g., Chicago, Rock Island & Pacific Railroad Co. v. Stude, supra (when must a party be realigned as a plaintiff); Bondurant v. Watson, 103 U.S. 281, 26 L. Ed. 447 (1880) (when is a claim ancillary to a pending state court case); FSLIC v. Quinn, supra (when is a counterclaim not a counterclaim).

Appellant's principal argument against this construction of the statute is that under § 1819(4) the FDIC may remove only "by following any procedure for removal now or hereafter in effect . . . ." The claim is that the only "procedure for removal" is that set forth in 28 U.S.C. § 1446, subparagraph (a) of which permits removal only by a defendant or defendants. See also Conner v. Salzinger, 457 F.2d 1241, 1243 (3d Cir. 1972); Sheets v. Shamrock Oil & Gas Corp., 115 F.2d 880 (5th Cir.), aff'd, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); 1A J. Moore, Federal Practice P 0.157(7), at 114 (1974); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3731, at 718-19 (1976). In light of what we have said above, however, we believe that the reference in § 1819(4) to "procedure for removal" is solely to the mechanical portions of 28 U.S.C. § 1446 which determine the "where," "when," and "how" of petitioning for removal. See note 3 supra. The question "who" can remove is resolved, insofar as the FDIC is concerned, within the language of § 1819 itself which provides for removal in "(a)ll suits . . . to which the (FDIC) shall be a party . . . ."

Loews' further argument, that the cases interpreting 28 U.S.C. §§ 1441, 1446 require that the consent of "all defendants" must be obtained to effect removal, see, e. g., In re Dunn, 212 U.S. 374, 386, 29 S. Ct. 299, 302, 53 L. Ed. 558, 563 (1909); Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960), is, in view of our construction of § 1819, wholly misplaced. Since we read that section to authorize removal by the FDIC even in cases where it is (perhaps due to realignment or substitution of parties) a plaintiff in the state court, the "all defendants" limitation is 28 U.S.C. § 1446(a) does not affect the right of the FDIC to remove under § 1819(4). This result is not an unusual one, for in other instances where special, rather than general, removal statutes control, the requirement that all defendants join in the petition for removal has been held inapplicable. See, e. g., Bradford v. Harding, supra, 284 F.2d at 309-10 (fewer than all defendants may remove under 28 U.S.C. § 1442 governing removal by defendants who are federal officials).

Judgment affirmed.