REVISED, MARCH 29, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-30756

 

FEDERAL DEPOSIT INSURANCE CORP.,

Plaintiff,

versus

RORY S. MCFARLAND, ET AL.,

Defendants.

TEXACO, INC.,

Defendant - Third Party Plaintiff,

versus

PREMIER VENTURE CAPITAL CORP.; DAVID L. JUMP,

Third Party Defendants - Appellees,

versus

DENNIS JOSLIN CO., L.L.C.,

Movant - Appellant.

 

Appeal from the United States District Court

For the Western District of Louisiana 

 

February 28, 2001

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This appeal turns in part on whether the Federal Deposit

Insurance Corporation (FDIC) as receiver must abide by Louisiana
1 Although McFarland executed other mortgages in favor of the

Bank of Commerce, none of these instruments is relevant to the

instant appeal.

2

reinscription rules to preserve its liens. The district court

determined that the mortgage and assignment held by the assignee of

the FDIC, the Dennis Joslin Company ("Joslin"), lost priority

status because of the FDIC's failure to reinscribe the mortgage

within the statutory period. The court found that two creditors,

Bank One and David L. Jump, had valid liens that were senior to the

FDIC's interest. 

In addition to its assertions based on Louisiana law, Joslin

argues that the FDIC is not bound by reinscription requirements.

The argument is that either the Financial Institutions Reform,

Recovery, and Enforcement Act of 1989, FIRREA, or federal common

law insulates the FDIC from state-law reinscription requirements.

We are not persuaded and affirm this holding of the district court.

We also conclude that Jump's lien was based on a judgment that was

not final when registered. We reverse the district court's contrary

holding and remand.

I

On November 30, 1984, Rory S. McFarland pledged a note in the

amount of $2.5 million to the Bank of Commerce of Shreveport,

Louisiana.1 McFarland secured this note with a mineral lease

mortgage and assignment, an "assignment of runs," of his interest
2 The assignment, which was executed on the same day as the

note, encompassed McFarland's right, title, and interest "in and

to the oil, gas and other minerals, of whatever nature and kind

whatsoever, situated in and under and which may be produced from

the land affected by the leases described" in a schedule attached

to the mortgage.

3 We will refer to the 1984 mortgage note as the 1984 mortgage

and the 1984 mineral lease mortgage and assignment as the 1984

assignment. We will also refer to both instruments jointly as the

1984 mortgage and assignment.

3

in the oil, gas, and minerals produced from the mortgaged leasehold

and mineral interests.2 

A casualty of the misfortunes that befell banking in the

1980s, the Bank of Commerce failed in 1986. The FDIC was appointed

receiver and took over the bank's assets, including the pledged

1984 note and the assignment.3

In August 1990, Bank One Equity Investment, Inc., formerly

Premier Venture Capital Corporation, obtained judgment, "the Bank

One judgment," against McFarland in Louisiana state court. Bank One

recorded this judgment in various Louisiana parishes between March

and August of 1991.

On October 1, 1991, David L. Jump obtained a judgment against

McFarland, "the Jump judgment," in the United States District Court

for the Western District of Colorado. Jump registered the judgment

in the Western District of Louisiana on June 26, 1992. In June and

July of 1992, Jump recorded the judgment in various Louisiana

parishes. 
4 Bank One and Jump agreed to combine their efforts in the

ensuing ranking dispute.

5 Texaco, Inc. had deposited proceeds from the mineral leases

into the court registry. The FDIC had joined Texaco as a party

given its status as the operator of most of the encumbered mineral

interests. The FDIC had also joined as parties Russell Long and

Palmer Long, who were trustees of certain expired trusts of which

McFarland had been beneficiary. Prior to the 1993 action, the Longs

periodically received funds from Texaco and distributed them to

McFarland.

6 On October 23, 1995, Bank One received $300,000 from the

funds deposited in the court registry that were traceable to the

OCS-310 lease. Bank One then released its judgment as to

McFarland's interest in the OCS-310 lease. Jump initiated

foreclosure proceedings and purchased that leasehold interest at a

sale held by the United States Marshal. Jump also received the

balance of the funds on deposit in the registry attributable to the

OCS-310 lease.

4

On October 31, 1991, the FDIC filed suit to collect the debt

owed by McFarland to the Bank of Commerce, including the 1984

mortgage and assignment. Bank One and Jump intervened in the case4

seeking the proceeds from the mineral leases that had been paid

into the court registry.5 They claimed that the 1984 assignment did

not encompass a specific offshore lease, OCS-310.

In 1993, the district court ordered McFarland to pay the FDIC

from the proceeds in the court registry and recognized the 1984

mortgage as the first lien. The court also held that the 1984

assignment did not include OCS-310 and ordered McFarland to pay the

proceeds of that lease to Bank One and Jump.6 The FDIC recorded the

1993 judgment of the district court in various Louisiana parishes
7 See Federal Deposit Ins. Corp. v. McFarland, 33 F.3d 532

(5th Cir. 1994).

5

between November 2, 1993, and November 8, 1993. This Court

subsequently affirmed the judgment in relevant part.7 

The FDIC reinscribed the 1984 mortgage and assignment in

various Louisiana parishes in July 1995. In 1997, the FDIC assigned

the mortgage and assignment to the Dennis Joslin Company.

In 1998, Joslin filed a motion for issuance of a writ of

execution and for foreclosure of the property subject to the 1984

mortgage and assignment. Joslin also sought distribution of the

funds that had accumulated in the court registry. The district

court issued the requested writ of execution and the United States

Marshal for the Western District of Louisiana seized the property.

The marshal advertised the sale of the property and set October 28,

1998 as the date of sale.

Through successive filings on October 23 and 26, 1998, Jump

objected to Joslin's actions. Jump contended that the FDIC's

failure to reinscribe the 1984 mortgage and assignment within ten

years of its execution resulted in a loss of ranking. Jump argued

that the 1991 Jump judgment consequently had priority as to both

the mineral interests and the proceeds deposited in the court

registry. The court postponed the marshal's sale. 

In June 1999, the district court entered another judgment

holding that Louisiana law required the FDIC to reinscribe the 1984
8 See La. Civ. Code Ann. art. 3369 (West 1992) (requiring the

reinscription of a mortgage within ten years of its creation).

Although the statute was amended in 1993, see 1992 La. Acts No.

1132, these amendments only apply to mortgages created on or after

the effective date of January 1, 1993. See id. at § 7; Seal v.

Crain, 767 So. 2d 798, 801 (La. App. 1st Cir. 2000). We note that

a pledge of minerals, or assignment of runs, faces the same tenyear reinscription requirement as the mortgage it secures. See La.

Rev. Stat. Ann. § 31:202 (West 1989). Contrary to Joslin's

assertions, the 1990 repeal of certain provisions of the Louisiana

Mineral Code does not affect this case. Revised Article 204 of the

Mineral Code, La. Rev. Stat. Ann. § 31:204 (West Supp. 2000), does

not apply to pledges entered into before the effective date of

Chapter 9 of the Louisiana's Commercial Laws. See 1989 La. Acts

137, § 20. The 1984 pledge at issue in this case was executed prior

to this effective date and is therefore governed by former Article

202 of the Mineral Code.

9 See Bayou Liberty Ass'n v. United States Army Corps of

Eng'rs, 217 F.3d 393, 396 (5th Cir. 2000) ("We must address the

issue of mootness first, because to qualify as a case for federal

court adjudication, a case or controversy must exist . . . .

Whether a case is moot is a question of law that we resolve de

novo.").

6

mortgage and assignment by November 30, 1994.8 The FDIC's

reinscription in 1995 was therefore untimely, depriving its

assignee, Joslin, of priority rank. The court consequently ranked

the Bank One judgment first, the Jump judgment second, and the

FDIC's 1984 mortgage and assignment third. Joslin appeals this

determination.

II

Joslin contends, first, that this case is moot.9 Joslin points

to the 1993 judgment, in which the district court declared the FDIC

to be "the owner and entitled to all funds paid into the Registry
10 See Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986)

(discussing Article III case or controversy requirements and noting

that, "[i]f the subject of an appeal has become moot, the appellate

court may not decide it").

11 See La. Civ. Code Ann. art. 3369 (West 1992); La. Rev. Stat.

Ann. § 31:202 (West 1989).

12 Shepherd v. The Orleans Cotton Press Co., 2 La. Ann. 100,

111 (La. 1847).

7

of this Court." Joslin argues that, except for the funds derived

from the OCS-310 lease, the FDIC was declared owner of all past and

future proceeds from the leases in question. Because the 1993

judgment vested the FDIC with priority lien status, Joslin contends

that the reinscription question was rendered moot.10 

Joslin's position is meritless. There is a live case or

controversy regarding the meaning of the 1993 judgment—the extent

to which it encompasses future, as well as past, proceeds deposited

in the registry. Moreover, we note that Louisiana law mandates the

reinscription of mortgages and assignments within a ten-year

period.11 As the Louisiana Supreme Court has held, "[a] litigation

between the mortgage creditors does not dispense from

reinscription. . . . The inscription must continue until the

proceeds of the property mortgaged are reduced to possession."12 The

1993 judgment did not then implicitly end the FDIC's continuing

obligation to reinscribe the mortgage. Moreover, the FDIC's failure

to reinscribe the mortgage did not occur until 1994, and the issue
13 Because the facts litigated in the 1993 judgment differ from

those in the 1999 judgment, collateral estoppel is of no assistance

to Joslin. See Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422

(5th Cir. 1995).

14 Joslin also frames its mootness argument in terms of the law

of the case doctrine. Joslin contends that the 1993 judgment

granted it (through the FDIC) ownership of the past and future

proceeds from the leases. It argues that this decision was binding

on the 1999 proceedings. This argument fails for the same reasons

as Joslin's mootness claim. The 1993 judgment did not preclude the

possibility that other circumstances could strip Joslin of its

ownership interest. Moreover, as discussed infra, we are skeptical

as to whether or not the 1993 and 1999 proceedings constitute

different phases of the same "case." Cf. United States v. Lawrence,

179 F.3d 343, 351 (5th Cir. 1999).

15 Jump is the only party besides Joslin participating in this

appeal. Pursuant to a prior compromise and settlement agreement,

Jump is participating on behalf of both himself and Bank One.

8

was not properly before the district court.13 Even if we were to

interpret the 1993 judgment as declaring the FDIC to be owner of

all future proceeds deposited in the court registry, the judgment

would still not exclude the possibility that other

circumstances—e.g., failure to reinscribe—might deprive the FDIC of

its lien. The instant appeal therefore presents a live

controversy.14

III

The larger question posed by this case is whether Louisiana

reinscription law applies to mortgages held by the FDIC. The

parties urge three different means of resolving this question.

First, Jump15 contends that the 1993 judgment disposed of the

reinscription question and is the "law of the case." Second, Joslin
16 Pub. L. No. 101-73, 103 Stat. 183 (codified as amended in

scattered sections of 12 U.S.C.).

17 Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1031 (7th

Cir. 1997) (citations and quotations omitted); see also United

States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996); 18 Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4478 (West Supp. 2000).

18 See Roboserve, 121 F.3d at 1031.

9

argues that the Financial Institutions Reform, Recovery, and

Enforcement Act of 198916 frees the FDIC from state-law

reinscription requirements. If FIRREA does not apply, Joslin

asserts that federal common law governs the FDIC, thereby

precluding the imposition of state reinscription obligations. We

address each contention in turn.

A

Jump argues that the district court in the 1999 case was bound

by the 1993 judgment, which provided the "law of the case." Under

the "law of the case" doctrine, "a decision on an issue of law made

at one stage of a case becomes a binding precedent to be followed

in successive stages of the same litigation."17 Where a final

judgment is entered, the case appealed, and the case remanded, a

trial judge must adhere on remand to the rulings it made in the

case before appeal, assuming that the appellate court has not

overturned the rulings.18 Moreover, an appellate court is generally
19 See Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d

1138, 1150 (5th Cir. 1993).

20 See id.

21 Jump does not argue that this Court's prior decision

provides the law of the case. Nothing in our 1994 decision implied

an affirmation of the district court's ruling on the reinscription

issue. Indeed, this Court did not even discuss the 1981 mortgage.

Failure to address an issue decided below does not necessarily

imply its affirmation. 

22 See Roboserve, 121 F.3d at 1031.

10

precluded from reexamining issues decided in a prior appeal.19 This

doctrine applies regardless of whether the issue was decided

expressly or by necessary implication.20

Jump notes that the 1993 judgment found a mortgage and

assignment issued by McFarland in 1981 to be "preempted." He

contends that the district court found the 1981 mortgage to be

preempted because of the FDIC's failure to reinscribe the original

mortgage within a ten-year period. Jump concludes that the district

court thereby recognized that the FDIC must comply with Louisiana

reinscription requirements. Jump concedes that the 1993 judgment

did not and could not address the FDIC's subsequent failure to

reinscribe the pledged 1984 mortgage. However, he asserts that the

1993 judgment enunciated a legal principle that was binding on the

1999 judgment.21 As we understand it, he contends that the 1993 case

was merely a prior stage of the same litigation, and that the

district court's prior judgment bound it in future phases of the

same case.22
23 Cf. United States v. Lawrence, 179 F.3d 343, 351 (5th Cir.

1999) (finding that law of the case doctrine did not apply, as a

post-conviction motion is a separate "case" from the initial

proceeding resulting in conviction).

11

On the face of the matter it is doubtful whether the 1993 and

1999 proceedings constitute the same "case." It is true that the

same trial judge presided at both proceedings and that the two

judgments had the same case number and caption. It is equally true,

however, that the 1993 decision was a final judgment and the 1999

case was not decided on remand from our 1994 decision. By then,

several facts had changed: Joslin became the holder of the FDIC's

1984 mortgage and assignment, and the FDIC failed to reinscribe the

mortgage.23 

Even if we assume that the two rulings were part of the same

"case," we do not read the 1993 judgment as advocated by Jump. The

1993 judgment does not explain its finding of preemption. In a pretrial order adopted by the district court in 1993, the court

recognized as a contested issue of law "[w]hether the 1981 FDIC

mortgage is unenforceable because it was not reinscribed" (emphasis

added). The court also noted two other objections to the 1981

mortgage: (1) whether the mortgage was "unenforceable" because it

failed to comply with La. Rev. Stat. § 30:138; and (2) whether

failure to fill in the effective date on the mortgage similarly

rendered it "unenforceable." The record does not reflect any
24 See State ex rel. Meriwether v. City of Shreveport, 91 So.

678, 679 (La. 1921); Vautrain v. Neel, 163 So. 555, 557 (La. Ct.

App. 1935).

25 See Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1031-

32 (7th Cir. 1997) (finding that the law of the case doctrine did

not apply, as scant references in the record were insufficient to

establish that the district court or appellate court prior to

remand had decided the issue).

26 This Court applies de novo review to questions of law. See

St. Martin v. Mobil Exploration & Prod. U.S. Inc., 224 F.3d 402,

405 (5th Cir. 2000).

12

further discussion by the parties of the reinscription issue prior

to the 1993 judgment. 

The 1993 judgment failed to unambiguously affirm the FDIC's

obligation to abide by Louisiana reinscription law. While Louisiana

cases occasionally employ the term "preemptive" to describe the

period in which a mortgage must be reinscribed,24 this language

differs from the court's 1993 pre-trial order, "unenforceable."

Given these uncertainties, we are not prepared to conclude that the

law of the case doctrine barred the district court from considering

the reinscription issue.25

B

Joslin argues that FIRREA, 12 U.S.C. § 1825(b)(2), protects

the FDIC from state-law reinscription requirements.26 The statute

provides:

When acting as a receiver, the following provisions shall

apply with respect to the Corporation: . . . No property

of the Corporation shall be subject to levy, attachment,
27 12 U.S.C. § 1825(b)(2) (2000).

28 See Security Nat'l Trust v. Alexander, 621 So. 2d 30, 31

(La. App. 2d Cir. 1993).

29 See Executors of Liddell v. Rucker, 13 La. Ann. 569, 571

(La. 1858); Alexander, 621 So. 2d at 31. The 1984 assignment faces

an equivalent reinscription law. See La. Rev. Stat. Ann. § 31:202

(West 1989) (articulating a ten-year reinscription period and

noting that the "effect of registry" of a pledge terminates after

that period).

13

garnishment, foreclosure, or sale without the consent of

the Corporation, nor shall any involuntary lien attach to

the property of the Corporation.27 

Joslin asserts that the plain meaning of the statute compels the

conclusion that Louisiana reinscription law would not apply to the

FDIC. 

The Louisiana reinscription statute may effect a re-ranking of

liens. Failure to reinscribe a mortgage within the ten-year period

specified in Article 3369 of the Louisiana Civil Code does not

invalidate the mortgage as between the contracting parties.28

Untimely reinscription does, however, render the initial

inscription of the mortgage ineffective against third parties.

Third-party creditors then have priority over the mortgage that was

not timely reinscribed. Any attempt to reinscribe after the tenyear period can not alter this change in seniority. Late

reinscription merely crystallizes the ranking in effect at the time

of the reinscription.29

Although failure to reinscribe a mortgage may result in the

application of an "involuntary lien" to FDIC property, FIRREA does
30 See Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 609 (5th

Cir. 2000).

31 See Trembling Prairie Land Co. v. Verspoor, 145 F.3d 686,

690 (5th Cir. 1998); H.R. Rep. No. 101-54(I), at 294, 307 (1989),

reprinted in 1989 U.S.C.C.A.N. 86, 90, 103; H.R. Conf. Rep. No.

101-222, at 393 (1989), reprinted in 1989 U.S.C.C.A.N. 432, 432. 

32 See 12 U.S.C. §§ 1821(c)(6)(B)(ii) (2000).

33 Verspoor, 145 F.3d at 689-90.

34 See 12 U.S.C. § 1825 (1988).

35 See Irving Indep. Sch. Dist. v. Packard Props., 970 F.2d 58,

61 (5th Cir. 1992).

14

not provide relief. We read the provisions of FIRREA in context,

cognizant of the statute's structure and purpose.30 Passed in the

wake of a national crisis in the banking and savings-and-loan

industries, FIRREA was intended to promote stability, economic

recovery, and increased public confidence.31 To this end, the FDIC

was empowered to serve as receiver for failed financial

institutions.32 Section 1825 was enacted to facilitate the FDIC's

efforts as receiver and was intended to "protect assets

involuntarily acquired by the FDIC from losing value because of its

lack of knowledge about local and state tax liens."33

Before the passage of FIRREA, section 1825 only included the

provision currently codified as 1825(a), which articulated the

FDIC's exemption from taxation while acting in its corporate

capacity.34 FIRREA added subsection (b) to extend this exemption to

the FDIC's role as receiver.35 We are persuaded that section
36 H.R. Rep. No. 101-54(I), at 337, reprinted in 1989

U.S.C.C.A.N. at 133 (emphasis added).

37 See United States v. Marek, 2001 WL 10561, at *8 (5th Cir.

2001) (affirming the value of examining the title of a disputed

provision where ambiguity is present).

38 See FIRREA § 219, 103 Stat. 183, 261 (codified as amended

at 12 U.S.C. § 1825(a)).

15

1825(b)(2) merely extends the general exemption of the FDIC from

taxation to the receivership context. As a House Report

accompanying FIRREA indicated:

[Section 1825(b)(2)] clarifies the existing provision

specifying that the only kind of non-Federal tax to which

the FDIC, in its corporate capacity or as receiver, is

subject is a tax on real property. The exemption from

taxation extends to the [FDIC's] property and operations

in whatever capacity it is functioning, and particularly

as receiver for a national bank, a branch of a foreign

bank, or a savings association (but not as a receiver for

a State bank under State law).36

The title to section 1825 confirms the arrangement established

by FIRREA.37 Section 1825 is labeled, "Exemption from taxation;

limitations on borrowing." FIRREA added the heading, "General

rule," to subsection (a).38 The heading which FIRREA designated for

subsection (b), "Other exemptions," confirms that section

1825(b)(2) was intended to address other exemptions from taxation

than those stipulated in the "general rule." The "other exemption"

at issue in this case is the rule precluding the attachment of an

involuntary tax lien to FDIC property. The structure, title, and

purpose of the statute compel this conclusion.
39 See Trembling Prairie Land Co. v. Verspoor, 145 F.3d 686,

689-91 (5th Cir. 1998); FDIC v. Lee, 130 F.3d 1139, 1143 (5th Cir.

1997); Donna Indep. Sch. Dist. v. Balli, 21 F.3d 100, 101 (5th Cir.

1994); Matagorda County v. Russell Law, 19 F.3d 215, 222 (5th Cir.

1994); see also Simon v. Cebrick, 53 F.3d 17, 22 (3d Cir. 1995).

40 Our Court is consequently in disagreement with the Tenth

Circuit. See GWN Petroleum Corp. v. OK-Tex Oil & Gas, Inc., 998

F.2d 853 (10th Cir. 1993). We note that the GWN court failed to

address whether the scope of section 1825(b)(2) was restricted to

liens held by state and local taxing authorities.

41 Lee, 130 F.3d at 1143 (emphasis added); First State BankKeene v. Metroplex Petroleum Inc., 155 F.3d 732, 738-39 (5th Cir.

1998).

16

This Court has consistently interpreted section 1825(b)(2) in

this fashion. We have found that this section prohibits state and

local taxing authorities from foreclosing on property subject to an

FDIC lien without its consent.39 This Court has not applied the

exemption of section 1825(b)(2) to liens not attached by state and

local taxing authorities.40 Indeed, we have repeatedly found that

section 1825(b)(2) "represents the express will of Congress that

the FDIC must consent to any deprivation of property initiated by

a state."41

Joslin attempts to apply this exemption to the intervention

initiated by Jump and Bank One. As Jump and Bank One are private

entities possessing normal judgment liens, however, their claims

are not barred by section 1825(b)(2). We therefore find that FIRREA

does not preclude the application of Louisiana reinscription law to

the FDIC's property. Nothing in FIRREA prevents Louisiana law from

recognizing either the FDIC's obligation to reinscribe mortgages or
42 Joslin also invokes 12 U.S.C. § 1821(d)(13)(C), which

provides: "No attachment or execution may issue by any court upon

assets in the possession of the receiver." Courts have construed

this provision as prohibiting the attachment of liens and judgments

against the property of the FDIC or Resolution Trust Corporation

(RTC) when they are acting as receivers. See Resolution Trust Corp.

v. Cheshire Mgmt. Co., 18 F.3d 330, 335 (6th Cir. 1994); GWN

Petroleum, 998 F.2d at 856-57; Cambridge Capital Corp. v. Halcon

Enters., Inc., 842 F. Supp. 499, 505 (S.D. Fla. 1993). However,

none of these decisions has applied this provision to the assignee

of the FDIC or RTC. Indeed, the plain language of section

1821(d)(13)(C) affirms that the provision applies only while the

assets are "in the possession" of the FDIC/RTC. While it is

generally true that "an assignee takes all of the rights of the

assignor, no greater and no less," In re New Haven Projects Ltd.

Liability Co. v. City of New Haven, 225 F.3d 283, 290 n.4 (2d Cir.

2000) (quotations omitted), no authority supports the proposition

that section 1821(d)(13)(C) creates assignable rights. See id.

At oral argument, Joslin raised for the first time the

contention that 12 U.S.C. § 1821(d)(13)(D), in conjunction with

section 1821(d)(13)(C), deprived the district court of jurisdiction

to decide the matter. Section 1821(d)(13)(D), which is entitled,

"Limitation on judicial review," states: 

Except as otherwise provided in this subsection, no court

shall have jurisdiction over - (i) 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 Corporation has been appointed

receiver, including assets which the Corporation may

acquire from itself as such receiver; or (ii) any claim

relating to any act or omission of such institution or

the Corporation as receiver.

12 U.S.C. § 1821(d)(13)(D). This provision merely requires

claimants to assets in possession of the FDIC to exhaust

administrative remedies prior to filing in court. The circuits

17

the loss of ranking suffered by the FDIC if it fails to meet this

obligation. FIRREA only prohibits state and local entities from

taking advantage of the FDIC's failure to reinscribe by attaching

liens and other instruments to satisfy tax judgments. As these

circumstances are not present here, Joslin's argument fails.42
agree on this point. See, e.g., American First Federal, Inc. v.

Lake Forest Park, Inc., 198 F.3d 1259, 1263 (11th Cir. 1999); FDIC

v. Scott, 125 F.3d 254, 258 (5th Cir. 1997); Nat'l Union Fire Ins.

v. City Sav., 28 F.3d 376, 393 (3d Cir. 1994); RTC v. Midwest Fed.

Sav. Bank, 36 F.3d 785, 791 (9th Cir. 1993). The record does not

reveal that administrative claim remedies were pursued prior to

either the 1993 or 1999 action. This Court is precluded from

collaterally attacking the 1993 decision. See Chicot County

Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940); Jack's

Fruit Co. v. Growers Mktg. Serv., Inc., 488 F.2d 493, 494 (5th Cir.

1973) (per curiam). Failure to pursue remedies in the 1999 case is

of no moment, however, as the FDIC was no longer a party. It would

be absurd for us to interpret section 1821(d)(13)(D) as assignable

to the current holder, Joslin. The claim procedures articulated in

12 U.S.C. § 1821(d)(5)-(11) are predicated on the FDIC's possession

of the property in question. When the FDIC relinquishes ownership,

the procedures governing its role as a receiver no longer apply to

the property. Thus, section 1821(d)(13)(D) did not deprive the 1999

court of jurisdiction. As noted above, section 1821(d)(13)(C) is

not a jurisdictional provision.

43 440 U.S. 715 (1979).

44 Id. at 718.

18

C

Joslin argues, in the alternative, that federal common law—

and not Louisiana reinscription law—governs the status of FDIC

liens. In United States v. Kimbell Foods, Inc.,

43 the Supreme Court

articulated the general framework for determining whether to apply

federal common law or state law. The Kimbell Foods case addressed

the question of whether liens arising from federal loan programs

take precedence over private liens. The Court noted that, in the

absence of a federal statutory provision setting priorities, it

must first decide whether federal or state law provides the "rule

of decision" for the controversy.44 If a federal rule of decision
45 Id.

46 Id.

47 O'Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994)

(quotations omitted).

48 Id.

49 See id. at 85 (describing FIRREA as "comprehensive

legislation"). Joslin concedes that FIRREA is "meticulous and

comprehensive."

19

is appropriate, the court must determine whether to fashion a

uniform federal standard or to incorporate state commercial law.45

The Court's inquiry was guided by consideration of three factors:

(1) the federal interest in uniform federal rules; (2) whether

application of state law would frustrate the specific objectives of

the federal program at issue; and (3) to what extent application of

a federal rule would disrupt commercial relationships predicated on

state law.46 In subsequent cases, the Court has held that federal

law provides the "rule of decision" in lieu of state law only where

there is a "significant conflict between some federal policy or

interest and the use of state law."47 The Supreme Court has observed

that such a conflict is a "precondition for recognition of a

federal rule of decision," and has noted that such cases are "few

and restricted."48

We find that state law provides the rule of decision in this

case. FIRREA is a comprehensive and detailed statutory scheme.49 The

Supreme Court has stated that we are not to "adopt a court-made

rule to supplement federal statutory regulation that is
50 Id.

51 Davidson v. FDIC, 44 F.3d 246, 251 (5th Cir. 1995); see

O'Melveny & Myers, 512 U.S. at 88.

52 See Atherton v. FDIC, 519 U.S. 213, 225 (1997); O'Melveny

& Myers, 512 U.S. at 88; Ferguson v. FDIC, 164 F.3d 894, 897-98

(5th Cir. 1999); Davidson, 44 F.3d at 251.

53 Davidson, 44 F.3d at 251.

54 See id. at 250 ("Absent [a significant federal proprietary

interest] . . . or some express congressional policy to the

contrary, state law governs state-law rights held by the FDIC in

its limited capacity as the receiver of a nonfederal entity.").

20

comprehensive and detailed; matters left unaddressed in such a

scheme are presumably left subject to the disposition provided by

state law."50 Joslin does not articulate a valid basis for

overcoming this presumption.

Moreover, the FDIC in this case acts not in its corporate

capacity, but as receiver for a private bank. This Court has

followed the Supreme Court in recognizing that "the capacity in

which the FDIC acts may have a determinative impact on whether a

state or federal rule should control."51 As receiver for the Bank

of Commerce, the FDIC's rights and liabilities derive from a

private lien held by a private bank. Precedent confirms that the

FDIC's actions as receiver do not implicate the concerns

articulated in cases such as Kimbell Foods.52 As the FDIC's actions

as a receiver do not concern the "rights of the United States in a

nationwide federal program,"53 state law normally supplies the rule

of decision.54
55 See Kimbell Foods, 440 U.S. at 728-29.

56 See, e.g., 12 U.S.C. § 1825; see also Campbell Leasing, Inc.

v. FDIC, 901 F.2d 1244, 1249 (5th Cir. 1990) (finding that the FDIC

enjoys holder in due course status as a matter of federal common

law, regardless of whether it acts in a corporate or receivership

capacity).

57 See Atherton v. Federal Deposit Ins. Corp., 519 U.S. at 218

("Nor does the existence of related federal statutes automatically

show that Congress intended courts to create federal common-law

rules, for 'Congress acts . . . against the background of the total

corpus juris of the states.'") (quoting Wallis v. Pan Am.

Petroleum Corp., 384 U.S. 63, 68 (1966)); see also O'Melveny &

Myers, 512 U.S. at 86-87.

58 See O'Melveny & Myers, 512 U.S. at 88.

59 See Kimbell Foods, 440 U.S. at 729-33 (noting that adherence

to state-law lien priority rules would not unduly impede the

operations of the Small Business Administration (SBA), given that

21

We also do not find that application of state law would create

a "significant conflict" with the FDIC's putative interest in the

application of a uniform national standard.55 Joslin points to

provisions in FIRREA which protect the FDIC from the effects of

state law,56 yet offers no reason why these protections—none of

which is relevant to the reinscription issue at hand—imply the need

for a uniform national standard.57 While uniformity of law would

free the FDIC from the obligation of consulting state law to

determine reinscription and lien priority rules, this requirement

is one of the "ordinary consequences" of operating as receiver.58

Disposing of the assets and obligations of a failed financial

institution necessarily requires an individualized inquiry into the

effects of local law.59 FIRREA lightens this burden considerably by
it already engaged in individualized inquiry regarding local law

and prospective debtors).

60 O'Melveny & Myers, 512 U.S. at 89.

61 N.S.Q. Assocs. v. Beychok, 659 So. 2d 729, 731 (La. 1995).

22

protecting the FDIC from the effect of state law in various

respects. Joslin provides no compelling reason for this Court to

extend these protections. Nor does it offer any limiting principles

were we to proceed down that road, demonstrating the "runaway

tendencies of 'federal common law.'"60 

Joslin articulates no significant federal policy or interest

that would be jeopardized by exposure to reinscription

requirements. There is a candidate. FIRREA was "designed in part to

facilitate the efficient and speedy recovery of the assets of . .

. failed [financial institutions]."61 Given the need to market

occasionally large quantities of assets, the FDIC prefers to sell

assets without the risk of losing its priority position. While we

are not unsympathetic to the bureaucratic limitations of the FDIC,

we fail to see how the state-law requirements at issue pose a

"significant conflict" with the federal interest in effectively

disposing of the assets at the FDIC's disposal.

Precedent also leaves little doubt that a federal agency's

interest in preserving priority lien status is insufficient to

render state law inapplicable. Although Kimbell Foods applied a

federal rule of decision, it incorporated state law for purposes of

determining the relative priority of competing federal and private
62 See Kimbell Foods, 440 U.S. at 718.

63 42 F.3d 968 (5th Cir. 1995).

64 Magnolia, 42 F.3d at 969. This Court fails to discern a

relevant difference between the interests of agencies such as the

SBA and the Farmers Home Administration (FmHA) in preserving

priority lien status and that of the FDIC. 

65 See Executors of Liddell v. Rucker, 13 La. Ann. 569, 571

(La. 1858); Security Nat'l Trust v. Alexander, 621 So. 2d 30, 31

(La. App. 2d Cir. 1993).

66 See Magnolia, 42 F.3d at 972; cf. United States v.

Summerlin, 310 U.S. 414, 416 (1940); cf. Farmers Home Admin. v.

Muirhead, 42 F.3d 964, 965 (5th Cir. 1995).

67 See Kimbell Foods, 440 U.S. at 728-29, 739-40.

68 See McDuffie v. Walker, 51 So. 100, 105 (La. 1909); see also

Max Nathan, Jr. & Anthony P. Dunbar, The Collateral Mortgage: Logic

23

liens.62 In Magnolia Federal Bank v. United States,

63 our Court

similarly found that, "[i]nsofar as Magnolia's claim would

subordinate rather than bar enforcement of SBA's liens for

untimeliness, state law is properly invoked against the federal

agency."64 Failure to reinscribe a lien in Louisiana does not

extinguish the mortgage. The mortgage merely loses priority status

vis-a-vis other creditors.65 The prohibition against applying state

statutes of limitations to the activities of federal agencies

consequently does not govern this case.66 The Louisiana law at issue

presents no significant conflict with the FDIC's interests.

We further note that the application of federal law would

disrupt commercial relationships predicated on state law.67 As

Joslin concedes, Louisiana has a strong public records doctrine.68
and Experience, 49 La. L. Rev. 39, 44 n.22 (1988) (discussing

Louisiana's "strong public records doctrine"); Lee Hargrave,

Presumptions and Burdens of Proof in Louisiana Property Law, 46 La.

L. Rev. 225, 234 (1985) (same).

69 Dallas v. Farrington, 490 So. 2d 265, 269 (La. 1986)

(emphasis omitted).

70 Exxon Process & Mech. Fed. Credit Union v. Moncrieffe, 498

So. 2d 158, 159 (La. App. 1st Cir. 1986) (quoting Poutz v. Reggio,

25 La. Ann. 637 (1873)).

71 See Dallas, 490 So. 2d at 269. The fact that Jump and Bank

One had actual notice of the 1984 mortgage and assignment is

therefore irrelevant. We note that they are "third persons" as

defined in La. Civ. Code Ann. art. 3309 (West 2000) ("Third persons

to a mortgage are those who are neither parties to the contract of

mortgage or the judgment that the mortgage secures."). Jump and

Bank One were not parties to the 1984 mortgage and assignment,

which was created by contract. However, Joslin contends that the

language, "judgment that the mortgage secures," indicates that Jump

and Bank One, who are parties to the 1993 judgment, are not third

persons. As previously discussed, a mortgage only binds "third

persons" to the extent that it is validly recorded and reinscribed.

See La. Civ. Code Ann. art. 3308 (West 2000). Following Joslin's

reasoning, the FDIC's failure to reinscribe does not render the

1984 mortgage and assignment ineffective as to Jump and Bank One.

24

The public records doctrine serves important reliance interests, as

third parties are "entitled to rely on the absence from the public

records of any unrecorded interest in the property."69 The purposes

of the Louisiana reinscription requirement are "to provide public

notice of the essentials of the mortgage and to limit 'searching,

for the evidence of mortgages, more than ten years back.'"70 The

significance of this doctrine is evident in the Louisiana rule

stating that actual knowledge by third parties of an unrecorded

interest is immaterial; recordation and reinscription are alone

dispositive of priority status.71
It is unclear whether the current version of Article 3309

applies to a mortgage that was created before the effective date of

the Act creating that provision. See 1992 La. Acts 1132, §§ 2, 7

(amending prior definition of "third persons" and indicating in

general terms the effective date of the Act as January 1, 1993).

Louisiana law prior to 1993 defined "third persons" as "persons who

are not parties to the act or to the judgment on which the mortgage

is founded." La. Civ. Code Ann. art. 3343 (West compiled ed. 1973)

(emphasis added). This language makes clear that the previous

formulation of the category, "third persons," simply excluded

parties to the proceedings creating the original judicial mortgage.

The 1992 Act revising this article indicates that the current

Article 3309 merely codifies principles of the existing public

records doctrine and that it is based on former Civil Code articles

3343 and 3344. 1992 La. Acts 1132, § 2 (cmts. following Article

3309). The commentary following the revised article does not

indicate that the new language changed prior law. Indeed, the

current version of article 3299 of the Civil Code defines "judicial

mortgage" as a mortgage which "secures a judgment for the payment

of money." La. Civ. Code Ann. art. 3299 (West 2000) (emphasis

added). This language mirrors that which appears in Article 3309.

Although Bank One and Jump might be parties to a judicial mortgage

created by the 1993 judgment, this fact is irrelevant. The parties

do not contend that the FDIC failed to reinscribe a judicial

mortgage created in 1993. The 1993 judgment only binds Bank One and

Jump to the extent that the underlying 1984 mortgage and assignment

remains valid.

72 Kimbell Foods, 440 U.S. at 739.

25

Case law affirms the importance of respecting this state

policy. The Supreme Court has recognized that state laws of this

kind provide private commercial entities with "the stability

essential for reliable evaluation of the risks involved."72 The

Supreme Court also has noted that if federal law were to displace

state law regulating lien priority, "[c]reditors who justifiably

rely on state law to obtain superior liens would have their

expectations thwarted whenever a federal contractual security
73 Id.

74 See Farmers Home Admin. v. Muirhead, 42 F.3d 964, 966 (5th

Cir. 1995); Davidson v. Federal Deposit Ins. Corp., 44 F.3d 246,

251 n.4 (5th Cir. 1995); see also United States v. Yazell, 382 U.S.

341, 352-54 (1966); Mason v. United States, 260 U.S. 545, 555-57

(1923).

75 Davidson, 44 F.3d at 251 n.4 (quoting Yazell, 382 U.S. at

352).

76 Kimbell Foods, 440 U.S. at 729.

77 See O'Melveny & Myers, 512 U.S. at 89. Our holding today

renders it unnecessary to decide the question of whether the

putative exemption of the FDIC from Louisiana reinscription law is

assignable to Joslin. See Federal Deposit Ins. Corp. v. Bledsoe,

989 F.2d 805, 811 (5th Cir. 1993) (holding that assignees of the

FDIC and FSLIC are entitled to federal six-year statute of

26

interest suddenly appeared and took precedence."73 Moreover, this

Court's jurisprudence affirms that we are to defer to state

property regimes when considering whether to apply a federal common

law rule.74 We have found that the "strong local interest in state

regulation of land titles. . . . should 'be overridden by the

federal courts only where clear and substantial interests of the

National Government, which cannot be served consistently with

respect for such state interests, will suffer major damage if the

state law is applied.'"75 As we do not find that state law will

significantly impede the work of the FDIC as receiver in this

context, "we decline to override [this] intricate state law[ ] of

general applicability on which private creditors base their daily

transactions."76 We are ill-equipped to take such a step and leave

this matter in Congress's capable hands.77
limitations); Federal Sav. & Loan Ins. Corp. v. Cribbs, 918 F.2d

557, 560 (5th Cir. 1990) (finding that assignees of the FDIC enjoy

holder in due course status whether or not they satisfy the

requirements of state law); Porras v. Petroplex Sav. Ass'n, 903

F.2d 379, 381 (5th Cir. 1990) (holding that the protections

accorded the FDIC under the D'Oench, Duhme doctrine apply to

private assignee). 

78 La. Civ. Code Ann. art. 3333 (West 2000). The name of the

mortgagor, as well as the "recordation number or other appropriate

recordation information," are also required. Id.

79 La. Civ. Code Ann. art. 3336.

80 1992 La. Acts 1132, § 7.

27

IV

Assuming that Louisiana reinscription law applies to the FDIC,

Joslin contends that the 1993 judgment satisfied these

requirements. We disagree. Article 3333 of the Louisiana Civil Code

requires that the holder of the mortgage file a signed, written

notice of reinscription which, inter alia, "shall declare that the

document is reinscribed."78 Article 3336 of the Civil Code affirms

that this method is exclusive of all others.79 The Act creating the

reinscription method currently in effect states that "[t]he

procedure for reinscription of mortgages and privileges as set

forth in Civil Code Articles 3328 through 3331 shall be effective

as to all requests for reinscription filed on or after [January 1,

1993]."80 Assuming that the 1993 judgment constitutes a "request for

reinscription," the method outlined in Article 3333 applies. Not
81 See Exxon Process, 498 So. 2d at 160 (quoting Life Ins. Co.

of Virginia v. Nolan, 159 So. 583, 585 (La. 1935)). Former Article

3369 of the Louisiana Civil Code governs reinscription in this

case. Recent statutory amendments do not apply to the 1984 mortgage

and assignment. See 1992 La. Act No. 1132, § 7 (stating that

amendments do not apply to mortgages entered into before January 1,

1993).

82 Nolan, 159 So. at 585.

83 See Shepherd v. The Orleans Cotton Press Co., 2 La. Ann.

100, 113 (La. 1847) (noting that the description of the property

mortgaged is one of the "essential requisites" of Louisiana

28

only was the 1993 judgment not signed by an FDIC representative,

but it also does not declare that the document is to be

reinscribed. Consequently, the 1993 judgment did not reinscribe the

1984 mortgage and assignment.

Even under prior law, the 1993 judgment would not constitute

an effective reinscription of the mortgage and assignment. Although

a recorded judgment could effectively reinscribe a mortgage, it had

to include each of the "substantial particulars" of the mortgage.81

A reinscription had to contain "notice to the world that the

mortgagor continue[s] to admit his indebtedness, and that the

mortgagee continue[s] to maintain its mortgage on the property

described."82 The 1993 judgment does not include a copy of the 1984

mortgage and assignment. It only refers to "the oil and gas leases,

royalty interests, overriding royalty interests and other property

described" in the mortgage. This description fails to provide

third-parties with the notice required under Louisiana

reinscription law.83 The judgment also was deficient in other
reinscription law and that "reference to previous mortgages does

not cure that defect").

84 A. Miltenberger & Co. v. Dubroca, 34 La. Ann. 313, 314 (La.

1882).

85 Joslin also points out that Jump and Bank One made no

additional seizure of McFarland's assets following the 1993

judgment. It argues that the 1993 judgment "merged" Jump and Bank

One's previous seizure of the proceeds from the mineral leases.

Assuming that the FDIC's failure to reinscribe resulted in Joslin's

lien losing priority, Joslin contends that Jump and Bank One no

longer have a claim to the assets. 

Joslin fails to explain what "merger" in this context entails.

It is far from clear that the 1993 judgment ended the seizure of

the registry funds obtained by Jump and Bank One in 1992. Even if

the seizure terminated in the wake of the 1993 judgment, Jump and

Bank One's failure to renew this seizure does not necessarily

deprive them of a claim. Assuming that they have valid judgment

liens against McFarland that have yet to be fully satisfied by the

OCS-310 proceeds, they presumably have a claim to the other

proceeds generated by the mineral pledge entered into by McFarland.

Moreover, Joslin fails to cite any authority in support of its

argument. See Fed. R. App. P. 28(a)(9)(A); Jason D.W. v. Houston

Indep. Sch. Dist., 158 F.3d 205, 210 n.4, 212 (5th Cir. 1998). 

29

respects, as it failed to include, inter alia, "the name of the

officer who passed the act [of mortgage and assignment]."84 We

therefore agree with the district court that the 1993 judgment was

not a valid reinscription of the 1984 mortgage and assignment.85

V

Joslin contends that the Jump judgment was not a "final"

judgment and therefore improperly registered. 28 U.S.C. § 1963

allows for registration where a judgment "has become final by

appeal or expiration of the time for appeal or when ordered by the

court that entered the judgment for good cause shown." By the plain
86 The time for appeal articulated in Fed. R. App. P.

4(a)(1)(A) is only triggered by the entry of a final judgment or

order. See Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983)

("F.R.A.P. 4(a) provides that an appeal from a final judgment must

be filed within 30 days of entry of judgment.") (emphasis added).

87 See Huckeby v. Frozen Food Express, 555 F.2d 542, 545-46

(5th Cir. 1977); Redding & Co. v. Russwine Constr. Corp., 417 F.2d

721, 723-24 (D.C. Cir. 1969). 

88 Our holding today does not constitute a collateral attack

30

language of the statute, registration may only occur where a

judgment or order is final for purposes of appeal.86 The only

exception contemplated by section 1963 is where the district court

makes a good cause determination.

Rule 54 of the Federal Rules of Civil Procedure affirms that

a judgment is not final for purposes of appeal where it disposes of

fewer than all of the claims or parties involved in a case. Rule

54(b) allows a court to "direct the entry of final judgment as to

one or more but fewer than all of the claims or parties only upon

an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment." 

The Jump judgment only disposed of Jump's claims. Litigation

involving other parties to the Colorado litigation did not conclude

until August 25, 1997—long after the FDIC's reinscription of the

mortgage and assignment. As Jump concedes that no Rule 54(b)

certification was obtained, the judgment upon which he bases his

claim was not final.87 Because the registration of the Jump judgment

was premature,88 it could not prime the FDIC's lien following the
on the 1993 judgment—a step that we are not permitted to take. See

Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371,

375 (1940); Jack's Fruit Co. v. Growers Mktg. Serv., Inc., 488 F.2d

493, 494 (5th Cir. 1973) (per curiam). 

89 On remand, Jump will have the opportunity to re-register his

judgment. We are unprepared to view the conclusion of the Colorado

litigation in 1997 as automatically rendering Jump's registered

judgment final.

90 See Stanford v. Utley, 341 F.2d 265, 271 (8th Cir. 1965)

(Blackmun, J.).

91 See id.; Kelly v. Greer, 354 F.2d 209, 211 (5th Cir. 1965)

(dictum); Dichter v. Disco Corp., 606 F. Supp. 721, 724 (S.D. Ohio

1984).

92 See Coopers & Lybrand v. Livesay, 437 U.S. 463, 476 n.28

(1978) ("The Congress is in a position to weigh the competing

interests of the dockets of the trial and appellate courts, to

consider the practicability of savings in time and expense, and to

give proper weight to the effect on litigants. . . . This Court .

. . is not authorized to approve or declare judicial modification.

31

FDIC's reinscription of the mortgage and assignment in 1995.

Although registration of the 1997 judgment would assure Jump of a

claim to McFarland's assets, a resulting lien would remain

subordinate to those held by Bank One and Joslin, respectively.89

The district court focused on the unique status of consent

judgments, which are unappealable.90 The court held that the time

for appeal from a consent judgment expires immediately upon the

entry of judgment.91 Even if we accept the court's position, it does

not alter the fact that Jump failed to obtain the requisite Rule

54(b) certification. We are unprepared to carve out an exception to

Rule 54(b) for consent judgments. Such a decision is more

appropriately taken by Congress.92
. . . [These] choices fall in the legislative domain.") (quoting

Baltimore Contractors v. Bodinger, 348 U.S. 176, 181-82 (1955)).

32

In light of the preceding, we hereby AFFIRM the judgment of

the district court finding that Louisiana reinscription law

operates to strip the FDIC of priority lien status. We further

REVERSE the district court's holding that the Jump judgment was an

executable, final judgment and its finding that the Jump judgment

was senior to Joslin's lien. We REMAND for proceedings not

inconsistent with this opinion. 

AFFIRMED in part, REVERSED and REMANDED in part.