United States Court of Appeals,

Fifth Circuit.

No. 92-4953

Summary Calendar.

James B. KERSHAW, Sr. and Bessie M. Kershaw, Petitioners,

v.

RESOLUTION TRUST CORPORATION, Respondent.

April 13, 1993.

Petition for Review of a Decision of the Resolution Trust Corporation.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Petitioners Mr. and Mrs. James B. Kershaw, Sr., seek review of RTC's denial of deposit

insurance coverage as to $52,246.49 deposited in a failed savings institution. We deny the petition

for review.

Petitioners had three certificates of deposit at First Federal Savings and Loan Association of

Scotlandville, Louisiana. In the spring of 1990, First Federal's records indicated the account holders

of these certificates as (1) Mr. Kershaw for Mrs. Kershaw, Beneficiary; (2) Mrs. Kershaw for Mr.

Kershaw, Beneficiary; and (3) Mr. and Mrs. Kershaw. During May 1990, petitioners were contacted

by two employees of First Federal , Yvo nne Jackson and Henry Stamper. Jackson and Stamper

informed petitioners that a porti on of their funds might be without adequate deposit insurance

prot ect io n and advised them to meet with Jackson. Petitioners immediately did so and accepted

Jackson's recommendations for changing their accounts. Petitioners claim that an agent of RTC, then

conservator of First Federal, approved these changes.

The first two accounts were changed to denote Mr. "or" Mrs. Kershaw as account holders.

One listed Mr. Kershaw's name before the conjunction; the other listed Mrs. Kershaw's name first.

These two accounts held a total balance of $51,838.96. The third account was changed to denote

Mr. "and" Mrs. Kershaw as account holders. It contained $100,407.53. The records on which thesename changes were made listed for each account the ownership code 02; 02 indicated joint

ownership.

First Federal had been placed into RTC conservatorship in March 1989. According to a RTC

document, RTC's managing agent had direct control of all activities and functions of the institution

until it was closed. On August 17, 1990, First Federal was declared insolvent and placed in

receivership. Soon after, petitioners contacted RTC officials about their accounts. Petitioners were

advised that they could not withdraw more than $100,000. On August 27, 1990, petitioners filed a

proof of claim seeking to recover $52,246.49, the deposited amount in excess of $100,000.

Petitioners' counsel contacted RTC regarding petitioners' claim for $52,246.49. RTC appears

init ially to have treated their inquiries as requests for dividends due from the proof of claim, rather

than as requests for reconsideration of the denial of deposit insurance coverage. Petitioners submitted

information to RTC concerning their May 1990 meeting with Jackson, including a statement from

Jackson confirming the petitioners' account of it. After correspondence with petitioners' counsel and

an inquiry by their congressman, RTC o fficially denied petitioners' request for reconsideration of the

insurance determination by letter dated August 18, 1992.

RTC's August 18 decision stated that the three certificates of deposit were "identically-owned

joint accounts" which must be aggregated for insura nce purposes, citing 12 C.F.R. § 330.7. The

decision notes petitioners' contention that First Federal employees gave petitione rs advice to the

contrary. RTC maintained that it "cannot be bound by representations as to insurance coverage that

were contrary

t o regulations, whether or not members of the public had justifiably relied on such

representation." Petitioners seek review of this decision.

RTC contests our jurisdiction under 12 U.S.C. § 1821(f)(4), claiming RTC has not made a

final determination. RTC notes that, unlike the facts in N imon v. RTC, 975 F.2d 240 (5th Cir.1992),

the last notice given by RTC to the petitioners was not denoted its "final determination." Labels are

probative, but not dispositive. We find that RTC "has made a "definitive statement of the agency's

position ' t hat is reviewable under section 1821(f)(4)." A brams v. FDIC, 938 F.2d 22, 25 (2d

Cir.1991) (quoting G. & T. Terminal Packaging Co. v. Haw man, 870 F.2d 77, 80 (2d Cir.1989)).1 The regulations currently found in 12 C.F.R. Part 330 became effective July 29, 1990, 12

C.F.R. § 330.16(a), and so were in effect when First Federal was placed in receivership on August

17, 1990. See Spaw

n v. Western Bank-Westheimer, 925 F.2d 885, 887 n. 1 (5th Cir.1991)

(applying pre-FIRREA regulations in effect at time FDIC was appointed receiver). The finality of agency action is determined by considering the practical effect of the determination.

See Hawm an, 870 F.2d at 79. RTC's decision in this case was, practically speaking, a final

determination of petitioners' request for insurance coverage . We base this conclusion in part on

RTC's statement, in its brief, that "[t]here would be nothing gained at this point to require the RTC

to submit nor perform any additional activity in this matter."

We review RTC deposit insurance determinations under the Administrative Procedures Act

and must affirm them unless they are "found to b e arbit rary, capricious, an abuse of discretion, or

otherwise not in acc ordance with the l aw." N imon, 975 F.2d at 244. In deciding whether RTC's

decision was arbitrary, capricious, or not in accordance with the law, we consider whether the agency

followed its governing regulations. I d. at 245. 1 We give deference to the interpretation of statutes

and regulations by the agencies charged with their implementation. Id.

Petitioners contend that RTC disregarded its regulations by failing to consider the ownership

and capacities in which the three accounts were maintained. The regulations state

All deposits in an insured depository institution which are maintained in the same right and

capacity (by or for the benefit of a particular depositor or depositors) shall be added together

and insured.... Deposits maintained in different rights and capacities, a s recognized under this

part, shall be insured separately from each other.

12 C.F.R. § 330.3(a) (emphasis added). Petitioners argue that an account held in the name of Mr.

and Mrs. Depositor is maintained in a different capacity than an account held in the name of Mr. or

Mrs. Depositor. Petitioners can point to no support for this contention. Indeed, their brief states that

"there is nothing in the SCR's [sic] relating to whether or not accounts listed "Mr. o r Mrs.' can be

aggregated with accounts listed "Mr. and Mrs.' "

The regulations recognize a variety of capacities in which accounts may be maintained: single

ownership accounts, joint ownership accounts, accounts held by agents or guardians, revocable trust

accounts, and so forth. Joint accounts are defined as those whose co-owners (1) are natural persons,

(2) each of whom has personally signed a signature card, and (3) each of whom possesses withdrawal2

Nimon involved money market accounts, not certificates of deposit. See 975 F.2d at 242-43.

3 Petitioners overlook for the purposes of this argument that the "interest" is an undivided,

inalienable one-half interest. La.Civ.Code Ann. arts. 2336-37 (West 1985). rights on the same basis. § 330.7(c). This category includes accounts owned as joint tenancies with

rights of survivorship, tenancies in common, and accounts in the names of both spouses containing

community property funds. § 330.7(a). Joint ownership is the only capacity recognized under the

regulations which could apply to accounts held by a couple denoted either "Mr. and Mrs. Depositor"

or "Mr. or Mrs. Deposi

tor." Moreover, both petitioners signed the signature card for each account,

and First Federal's records indicate joint ownership.

Usually, the pres e nce of two or more signatures on a deposit account signature card is

conclusive evidence that an accoun t is jointly owned. § 330.7(c). This conclusive ownership

presumption , however, does not apply to certificates of deposit. S ee Palermo v. FDIC, 981 F.2d

843, 846-47 (5th Cir.1993) (construing § 330.7(c)). FDIC and RTC must consider extrinsic evidence

to determine whether a certificate of deposit is "in fact" jointly owned, if such ownership is disputed.

Id. 2 In P alermo, the petitioner sought separate insu rance coverage for a certificate of deposit by

claiming that the account was individually owned d espite the presence of two si gnatures on the

signature card. I

d. at 844. In this case, petitioners have never asserted that the certificates of deposit

were not jointly owned; they claim that the certificates are held in different c apacities. There is no

need here, as there was in Palermo, for a further inquiry into actual ownership.

Petitioners also contend that RTC reached an erroneous decision because it failed to consider

the community property aspects of Louisiana law. All property in the possession o f spouses is

presum pt ively community property in which each spouse owns an undivided one-half interest.

La.Civ.Code Ann. arts. 2340, 2336 (West 1985). Therefore, petitioners argue, they each had an

interest of roughly $75,000, 3 and the regulations ought to be construed in order to protect the interest

of each spouse up to $100,000.

Petitioners fail to realize that the regulations governing RTC's determination expressly deal

with community property in a different manner. RTC found that petitioners' accounts were governed4 This account structure may have corresponding disadvantages, such as limited withdrawal

privileges and complexities in succession upon the death of one account holder.

5 Our decision does not conflict with FDIC v. Harrison, 735 F.2d 408 (11th Cir.1984).

Harrison allowed the assertion of estoppel against the FDIC in its capacity as corporate receiver

collecting debts, not in its capacity as insurer. by § 330.7, which provides that joint accounts in the names of both spouses comprised of community

property will be insured separately from accounts in the names o f either spouse individually. §

330.7(a); s ee also § 330.5(c) (providing that an account in the name of one spouse containing

community funds is treated as that spouse's individual account). In this fashion, a couple such as the

petitioners could maintain at least t hree accounts in one institution, each separately insured up to

$100,000: one in each spouse's individual name and a third in the name of both. 4

Petitioners maintain that they were justified in rel ying upo n t he recommendations of First

Federal's employees—and, allegedly, the approval of an RTC agent—when struc turi ng their accounts.

Thus, they argue, RTC should have o verlo oked the faulty form of the May 1990 changes and

considered their substance, i.e., petitioners' intent to structure the accounts so as to provide adequate

insurance coverage. RTC must rely upon rights and capacities as they are reflected in a failed

institution's records. N

imon, 975 F.2d at 245. Ordinarily, RTC act s neither arbitrarily nor

capriciously when it refuses to base its determinations on the subjectiv e int ent of depositors not

reflected in the institution's recor ds. We are not persuaded that petitioners' detrimental reliance

mandates a different conclusion here. RTC's insurance fund cannot be depleted due to the mistakes

of a savings institution's employees. S ee Nimon, 975 F.2d at 246. Jackson, the First Federal

employee, states that a RT C agent approved the account changes, which in light of RTC

conservatorship might have misled petitioners if they we re aware of it. Assuming arguendo that

petitioners relied upon a RTC age n t's assurance of insurabilit y, RTC cannot be bound to a

misrepresentat ion t hat was contrary to regulations. F ederal Crop Ins. Corp. v. Merrill, 332 U.S.

380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); see also Mendrala v. Crown Mortgage Co., 955 F.2d 1132,

1141 (7th Cir.1992) (Federal Home Loan Mortgage Corp. cannot be bound by unauthorized actions

of its independent servicing agent). 5F inally, petitioners' claim that RTC's determination violates their due process righ ts lacks

merit. See Nimon, 975 F.2d at 247-48.

The petition for review is denied.