NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARK COUNTY BANCORPORATION, 

Plaintiff-Appellant, 

 v. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Bank of 

Clark County, 

Defendant-Appellee.

No. 19-35097 

D.C. Nos. 3:14-cv-05816-BHS 

3:14-cv-05852-BHS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted May 5, 2021

Seattle, Washington

Before: BOGGS,** TASHIMA, and MURGUIA, Circuit Judges.

Plaintiff-Appellant Clark County Bancorporation (“CCB”) appeals the district 

court’s grant of Defendant-Appellee Federal Deposit Insurance Corporation as 

Receiver for Bank of Clark County’s (“FDIC”) motion to dismiss or, in the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

MAY 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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alternative, motion for summary judgment. The parties are familiar with the facts, 

so we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291, and 

we affirm the district court’s dismissal, “albeit on different grounds.” See Isabel v. 

Reagan, 987 F.3d 1220, 1225–26 (9th Cir. 2021). 

CCB initially sued the FDIC in its capacity as receiver, along with several 

other federal entities and officials, in the United States District Court for the District 

of Columbia (“D.C. court”). See Clark Cnty. Bancorporation v. U.S. Dep’t of 

Treasury, No. 13–632 (JEB), 2014 WL 5140004 (D.D.C. Sept. 19, 2014). The D.C. 

court determined that CCB had failed to exhaust its administrative remedies under 

the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 

(“FIRREA”) with respect to its challenge to the “FDIC-Receiver’s actions regarding 

the tax refunds at issue.” Id. at *13; see 12 U.S.C. § 1821(d). Because CCB “did 

not timely file claims for refunds . . . through FIRREA’s required administrative 

process,” the D.C. court dismissed the claims against the FDIC. Clark Cnty. 

Bancorporation, 2014 WL 5140004 at *15. CCB did not appeal the D.C. court’s 

judgment of dismissal. 

The D.C. court’s determination that CCB failed to timely exhaust its 

administrative remedies is entitled to preclusive effect here. See Deutsch v. 

Flannery, 823 F.2d 1361, 1364 (9th Cir. 1987) (“It matters not that the prior action 

resulted in a dismissal without prejudice, so long as the determination being 
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accorded preclusive effect was essential to the dismissal.”). Once the D.C. court 

determined that it lacked subject matter jurisdiction because CCB failed to timely 

file a claim with the FDIC, neither CCB’s nor the FDIC’s subsequent actions recreated subject matter jurisdiction over the same tax-refund claims. See 

Intercontinental Travel Mktg., Inc. v. FDIC, 45 F.3d 1278, 1286 (9th Cir. 1994)

(explaining that waiver and estoppel doctrines do not apply to subject matter 

jurisdiction). Therefore, the district court did not err by granting the FDIC’s motion 

to dismiss.1

AFFIRMED.

1 Plaintiff-Appellant CCB’s motions to take judicial notice (Doc. 15 and Doc. 31)

and motion to supplement the record on appeal (Doc. 30) are denied as moot. The 

substance of these motions pertains to the merits of the tax-refund ownership 

question, which we do not reach here.