In Re Federal Savings and Loan Insurance Corporation, Asreceiver for Sunrise Savings and Loan Association,petitioner, 837 F.2d 432 (11th Cir. 1988)

The suits before us were commenced in state court against the Federal Savings and Loan Insurance Corporation (FSLIC), as the receiver for a federal savings and loan association, and were removed by FSLIC to federal court pursuant to 12 U.S.C. § 1730(k) (1) (C) (1982).¹  That statute authorizes FSLIC, when acting as the receiver for a federal savings and loan association, to remove to a United States district court any state court suit to which it is a party by following the procedures for removal provided by law. The district court, acting on its own initiative, noticed that FSLIC's codefendants had not consented to the removal of the cases as required by the general removal statute, 28 U.S.C. § 1441(a) (1982),²  and remanded the cases to the state court. FSLIC, contending that the right of removal granted it by section 1730(k) (1) (C) is not dependent upon such consent, petitions us for a writ of mandamus to compel the district court to litigate these cases.³  We conclude that the writ should issue.

FSLIC insures the deposits of federal savings and loan associations and serves as their receiver when they become insolvent, the situation here. FSLIC's statutory authority parallels that of the Federal Deposit Insurance Corporation (FDIC), which insures the deposits of banks. Once appointed receiver, FSLIC, like FDIC, stands, as the real party in interest, in the shoes of the received financial institution in any litigation in which the institution is a party.

Prior to 1966, FSLIC, when acting as receiver, had the same access to the federal district courts as a private litigant, i.e., it could repair to district court if the case presented a federal question or diversity of citizenship existed between the parties. Few cases reached the district courts, however, because most were based on state law and diversity of citizenship seldom existed. Cases involving FDIC, on the other hand, were "deemed to arise under the laws of the United States," but FDIC's authority to bring a case to federal court was subject to the limitations then found in 28 U.S.C. § 1331 (jurisdictional amount) and 28 U.S.C. § 1441 (removal criteria). See FDIC v. Sumner Fin. Corp., 602 F.2d 670, 675-76 (5th Cir. 1979).

In time, Congress concluded that FSLIC and FDIC might be more effective in discharging their statutory responsibilities if they had greater access to the district courts. Congress accordingly conferred on the United States district courts original jurisdiction over all cases⁴  in which these corporations were parties. Financial Institutions Supervisory Act of 1966, Pub. L. No. 89-695, Secs. 102(k), 205, 80 Stat. 1028, 1042, 1055.⁵  This grant of jurisdiction extends to all cases initiated by or against FSLIC or FDIC in district court, and to all state court cases removed by either of them pursuant to "any procedure for removal now or hereafter in effect." Id.

As noted, to remove a case from state court to federal court under section 1730(k) (1) (C), FSLIC must follow "any procedure for removal now or hereafter in effect." Drawing on this phrase, the district court apparently concluded that FSLIC had to satisfy the criteria of the general removal statute, 28 U.S.C. § 1441(a) (1982), which, as we have observed,⁶  requires as a condition precedent to removal the express consent of all defendants. All of the defendants did not consent to FSLIC's removal of these cases to district court; consequently, the court remanded them.

We do not agree with the conclusion that section 1441(a) provides a "procedure for removal" within the meaning of section 1730(k) (1) (C). Rather, section 1441(a) merely authorizes the removal from state court to district court of cases within the district court's subject matter jurisdiction. The procedures for removal to which section 1730(k) (1) (C) refers are those prescribed in 28 U.S.C. § 1446(a), (b), (d), (e) (1982), which specify how and when a petition for the removal of a case from state court to federal court is to be filed.⁷  Cf. FDIC v. Sumner Fin. Corp., 602 F.2d 670, 676 (5th. Cir. 1979) (parallel FDIC removal statute, 12 U.S.C. § 1819(4), "allow [s] FDIC as defendant in state court to remove even though other defendants do not consent to removal");⁸  Franklin Nat'l Bank Sec. Litig. v. Andersen, 532 F.2d 842, 846 (2d Cir. 1976) ("procedure for removal" provision in parallel FDIC removal statute, 12 U.S.C. § 1819(4), refers to removal procedures of 28 U.S.C. § 1446(a), (b), (d), (e), not 28 U.S.C. § 1441(a)); see also 1A J. Moore & B. Ringle, Moore's Federal Practice p 0.167 (2d ed. 1987) (agreeing with analysis in Andersen) . FSLIC followed these statutory procedures to the letter in these cases; accordingly, the district court was obliged to entertain them.

It is obvious that we must, unless we lack the authority to do so, issue the writ and compel the district court to adjudicate these controversies. The parties opposing FSLIC's petition contend that we are powerless to act, noting that Congress, in enacting 28 U.S.C. § 1447(d) (1982), has precluded appellate review of district court remand orders. That section provides that " [a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." We are not persuaded.

Section 1447(d)'s application is limited to cases remanded to state court pursuant to 28 U.S.C. § 1447(c) (1982).⁹  Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 349-52, 96 S. Ct. 584, 592-93, 46 L. Ed. 2d 542 (1976); Loftin v. Rush, 767 F.2d 800, 802 (11th Cir. 1985). Section 1447(c)' § application is, in turn, limited to cases removed from state court pursuant to section 1441(a). See Pacor, Inc. v. Higgins, 743 F.2d 984, 991 (3d Cir. 1984) (" [T]he proscription of section 1447(d) against review of remand orders is applicable to ... cases which were removed from state court pursuant to section 1441 and which were then remanded pursuant to section 1447(c)."). The cases before us were not removed pursuant to section 1441(a); it therefore follows that section 1447(d) has no application here.

The writ of mandamus is an appropriate device for correcting the district court's error in these cases. See Thermtron, 423 U.S. at 353, 96 S. Ct. at 594. We issue the writ because FSLIC is entitled to litigate these cases in federal court, as Congress intended. The district court's orders remanding these cases are accordingly

VACATED.