## Facts

- Venture Bank was a wholly owned subsidiary of Venture Financial Group, Inc. (VFG).
- VFG and the Bank operated under a 1993 tax allocation agreement requiring subsidiaries to pay their computed separate tax liability to VFG and requiring VFG to remit each member’s share of any refund.
- In September 2009, state regulators closed the Bank and appointed the FDIC as receiver.
- In 2011, the FDIC sought and obtained IRS authorization to act as an alternative agent for the affiliated group to file amended returns and claim refunds; VFG objected.
- From 2011 to 2013, the FDIC filed amended returns and the IRS paid about $8.47 million in refunds to the FDIC.
- In October 2013, VFG filed Chapter 7; Mark D. Waldron was appointed trustee.
- The FDIC filed a protective proof of claim asserting the refunds belonged to the FDIC rather than VFG’s estate.
- The trustee filed an adversary proceeding asserting a Bankruptcy Code preference theory to recover the refunds from the FDIC; the trustee did not first pursue FIRREA’s administrative claims process.
- The FDIC moved to dismiss for lack of subject-matter jurisdiction based on FIRREA nonexhaustion; the bankruptcy court ruled for the trustee, and the district court affirmed.

## Issues

1. Whether the FDIC, acting as receiver, is a “United States agency” under Federal Rule of Appellate Procedure 4(a)(1)(B) such that it has 60 days to file a notice of appeal.
2. Whether FIRREA’s administrative claims process deprived the bankruptcy court of subject-matter jurisdiction over the trustee’s affirmative preference action against the FDIC due to failure to exhaust administrative remedies.

## Decision

- The Ninth Circuit held the FDIC, when acting as receiver, qualifies as a “United States agency” under Rule 4(a)(1)(B); the FDIC’s appeal was timely under the 60-day period.
- The Ninth Circuit held FIRREA exhaustion is a jurisdictional prerequisite for the trustee’s affirmative preference action against the FDIC as receiver.
- The court reversed the district court and directed dismissal of the adversary proceeding for lack of subject-matter jurisdiction.

## Legal Principles

- For appellate timing under Fed. R. App. P. 4(a)(1)(B), the FDIC is treated as a United States agency when acting as receiver for a failed bank.
- FIRREA’s administrative claims process and jurisdictional bar apply broadly to claims seeking payment from, or a determination of rights to assets held by, the FDIC as receiver, unless and until the claimant exhausts the statutory administrative procedure.
- A bankruptcy trustee may assert a preference theory without FIRREA exhaustion only when used solely as an affirmative defense to an FDIC claim filed in the bankruptcy case.
- When a trustee brings a preference claim as an independent action seeking affirmative recovery from the FDIC as receiver, FIRREA requires administrative presentment and exhaustion; absent exhaustion, the bankruptcy court lacks subject-matter jurisdiction.

## Conclusion

The Ninth Circuit ruled that the FDIC, in its receivership capacity, is a federal agency for purposes of the 60-day appellate deadline and that FIRREA’s exhaustion requirement strips bankruptcy courts of jurisdiction over an unexhausted, affirmative preference action seeking to recover funds from the FDIC as receiver.


Waldron v. Fed. Deposit Ins. Corp., 935 F.3d 844 (9th Cir. 2019)