*

Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for

the Seventh Circuit, sitting by designation. 

United States Court of Appeals, Eleventh Circuit.

No. 94-4740.

David L. PAUL, Plaintiff-Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellee.

Aug. 14, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-442-CV-FAM) Federico A. Moreno, Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and CUDAHY*, Senior

Circuit Judge.

CUDAHY, Senior Circuit Judge.

This procedurally complicated case involves a challenge to

administrative action regarding property held by the Resolution

Trust Corporation (RTC) in its capacity as receiver for a failed

savings institution. The district court dismissed the challenge on

the grounds that it lacked subject matter jurisdiction in light of

the undisputed facts of the case. The plaintiff, David L. Paul

appealed this dismissal, and, after initially contesting the

appeal, the RTC filed a Stipulation of Reversal with this court.

After the dissolution of the RTC at the end of last year, the FDIC

succeeded to the RTC's position and adopted the RTC's Stipulation.

We accept the stipulation, which we construe as a confession of

error, and we remand the case to the district court. But the

nature of our order reflects a careful consideration of the facts

of the case, and we believe it appropriate to explicate our

consideration here.
We begin with the factual background of the case. Between

1983 and 1990, Paul was the Chairman and Chief Executive Officer of

CenTrust Savings Bank. In February 1990, the RTC became

conservator of CenTrust and was later named as its receiver. When

the RTC took control of the institution, it removed Paul from his

official positions, and it seized all of the property contained in

CenTrust's offices.

Paul claims that some of this property belonged to him

personally and that, as the receiver, the RTC was not entitled to

it. The items that Paul identifies as his personal property have

a total value of approximately $250,000, and they include family

photographs, paintings, prints and other artwork. Within a few

weeks of his removal from the bank, Paul began a correspondence

with the RTC regarding the property. He asked for its return, and

the RTC responded with a request for documentation of his

ownership. This correspondence regarding the property and the

proof of its ownership continued into 1991. During the early

stages of this correspondence, the RTC published notice of its

status as receiver and of the deadline for filing claims for the

return of property. The deadline was set for October 6, 1990. In

August 1991, Paul filed a Notice of Claim Form with the RTC

pursuant to the prescriptions of the Financial Institutions Reform,

Recovery and Enforcement Act of 1989 (FIRREA), which controls how

the RTC will conduct its receivership. In December 1991, the RTC

ruled on the merits of Paul's claims, finding that he had not

adequately proven his ownership of the property in question.

Paul filed a lawsuit in the district court challenging the
 1

All of the claims in Paul's complaint address the legality

of the RTC's administrative action in denying his claim, not the

RTC's authority to seize the property or its authority to take

original jurisdiction over the claims. The complaint notes that

Paul has filed a separate lawsuit in state court for conversion

and replevin, and we assume that this litigation has addressed or

will address the RTC's authority to seize property and to make

initial decisions about those claims. 

denial of his claim. 1 The RTC sought the dismissal of his

complaint on the ground that the district court lacked subject

matter jurisdiction. Under the terms of FIRREA, a district court

can review the RTC's denial of a claim only if the claimant has

exhausted his administrative remedies. See 12 U.S.C. §

1821(d)(13)(D). The RTC insisted that Paul had not done so because

his formal Notice of Claim was not filed until long after the

deadline for claims. The district court agreed and dismissed the

case. As we have noted, Paul appealed this decision and we have

received briefing and have heard oral argument in the matter.

After the oral argument, on November 13, 1995, the RTC filed

a Stipulation of Reversal with us. The Stipulation asserted that

the RTC had "reexamined the circumstances of the filing of

Appellant[ ] David Paul's administrative claim[ ] and has concluded

that it is appropriate to exercise its discretion pursuant to 12

U.S.C. 1821(d)(5)(C)(ii) to consider [A]ppellant's claim as timely

filed." The RTC thereby confessed that Paul was entitled to a

reversal of the district court's dismissal of his complaint. After

the submission of the Stipulation, on December 31, 1995, the RTC

dissolved and was succeeded by the Federal Deposit Insurance

Corporation (FDIC), which adopted the RTC's Stipulation and now

substitutes for the RTC in this matter.
We do not compel litigants to pursue disputes against their

will. We therefore are inclined to accept the Stipulation of

Reversal and to remand the case to the district court. This is

not, however, a simple matter, given the facts of the case, the

course of the proceedings, and the nature of the FDIC's

Stipulation. In light of these factors, the Stipulation raises a

number of problems that we must resolve if this order of reversal

is to be properly instructive.

As the Stipulation is written, we cannot immediately determine

what it is that the FDIC stipulates. The FDIC describes the

Stipulation as emerging from its discretion to consider Paul's

claim as timely filed, noting that this discretionary authority is

created by § 1821(d)(5)(C)(ii). Viewed in the light of this

description, the Stipulation seems to be a legal concession by the

FDIC, forgiving the untimely filing of Paul's claim and waiving the

exhaustion of administrative remedies as a prerequisite to the

district court's subject matter jurisdiction. Indeed, in another

paper submitted to us after the filing of the Stipulation by the

RTC, the FDIC seems to confirm this impression. It denied that the

Stipulation was a confession of error and asserted that the RTC was

correct in making its initial determination that Paul's claim was

untimely filed. The FDIC thus seems to maintain that Paul's claim

was, in fact, untimely, but that the legal consequences of this

jurisdictional fact can be waived.

 We hesitate to accept this characterization of the

Stipulation, however. In ordinary circumstances, the parties to a

challenge to administrative action under FIRREA may not waive
conditions to subject matter jurisdiction. See Brady Dev. Co.,

Inc. v. RTC, 14 F.3d 998, 1007 (4th Cir.1994); Meliezer v. RTC,

952 F.2d 879, 883 (5th Cir.1992). But, like the RTC before it, the

FDIC is a government agency with specifically delegated legal

powers that could, in some circumstances, permit it to cure

problems of subject matter jurisdiction. Section 1821(d)(5)(C)(ii)

may create those powers for the FDIC in some cases (a question we

need not and do not decide here), but we cannot conclude that this

provision has any relevance to this case. This section of the

statute gives the FDIC discretion to hear claims filed after the

filing deadline if the claimant did not have notice of the identity

of the receiver before the deadline. The parties here do not

dispute that Paul had such notice long before October 6, 1990.

Indeed, the fact of this notice is obvious from copies of the

correspondence in the record. The discretion conferred by §

1821(d)(5)(C)(ii) is narrowly drawn, and the FDIC loses this

discretion after the claimant has notice of its status as receiver.

See Hudson United Bank v. Chase Manhattan Bank of Connecticut,

N.A., 43 F.3d 843, 851 n. 20 (3d Cir.1994); Brady, 14 F.3d at

1007. Consequently, given the undisputed facts in this case, the

FDIC has no power under § 1821(d)(5)(C)(ii) here, and the

Stipulation cannot be the product of any power created by that

statute.

We do note that one circuit court has found that the FDIC can

exercise broad discretion under § 1821(d)(5)(C)(ii). In Heno v.

FDIC, the First Circuit noted that, as a federal agency, the FDIC

has extensive power to interpret § 1821(d)(5)(C)(ii). 20 F.3d
1204, 1208-10 (1st Cir.1994) (relying on Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984)). According to Heno, the FDIC could

effectively broaden its discretion under § 1821(d)(5)(C)(ii) by

interpreting that section broadly in a manual of procedures. If

the FDIC had alerted us to regulations or a manual of procedures

pertaining to § 1821(d)(5)(C)(ii), these administrative provisions

might have helped us understand how that section is relevant to

this case and to the Stipulation of the Reversal. Because we do

not have any such regulations or official procedures before us, we

cannot find that § 1821(d)(5)(C)(ii) pertains to this case.

This brings us to another problem associated with the

Stipulation of Reversal. During oral argument, we asked the RTC's

counsel whether it had any regulations defining the procedures for

filing claims and when these regulations might have been in force.

On January 2, 1996 we ordered the RTC to produce these regulations,

pointing out that we would not act on the Stipulation of Reversal

without them. As the RTC's successor, the FDIC responded to this

order by reminding us (unnecessarily) that it had discretion to

establish the procedures for filing administrative claims and by

insisting (without apparent basis) that the Notice of Claim form

itself told us everything that we needed to know about its

regulation of the administrative claims process. The FDIC appended

a copy of the Notice of Claim form to their response. Although the

tone of the FDIC's response borders on the disrespectful, we must

assume that the response constitutes its compliance with—not its

defiance of—our order of January 2. We must therefore presume that
this form constitutes the entirety of the regulations pertaining to

the administrative claims process. These "regulations" are not

broad or specific enough to convince us that the FDIC has the

authority to cure any jurisdictional problems with Paul's claims.

 Because the FDIC does not have the power here to waive any

objection to subject matter jurisdiction, we must construe the

Stipulation to be a confession of error that implies a fact that

would be essential to finding subject matter jurisdiction in the

district court. The only fact that would appear to confer subject

matter jurisdiction on the district court is the fact that Paul's

claim was timely filed. Therefore, the Stipulation must be an

admission of this fact, but the Stipulation is not clear about the

precise nature of the fact that it admits. The FDIC asserts that

Paul's claim was timely filed, but what constitutes his claim? It

may consist of the entire course of correspondence between Paul and

the RTC that began in February 1990 or, alternatively, only of the

Notice of Claim form that he filed in August 1991. If the district

court is to review the RTC's treatment of Paul's claim, it must

recognize what that claim was and what actions of the RTC were

relevant to it. Because these factual matters are not clear from

the face of the Stipulation, as an aid to the district court on

remand, we will provide clarification.

We must conclude that the claim to which the Stipulation

refers consists of the correspondence between Paul and the RTC

beginning in February 1990. We reach this conclusion by a process

of elimination. It is undisputed that Paul had notice of the RTC's

status as receiver, and he had notice of the existence of the
claims process long before the deadline for filing claims. Given

these facts, it would be impossible to find that his filing of the

Notice of Claim form in August 1991 was timely. That filing could

be considered timely only if § 1821(d)(5)(C)(ii) applied here, but,

as we have noted, that section cannot apply. Therefore, we must

read the Stipulation of Reversal as an admission that Paul's

correspondence with the RTC, which began in February 1990, was his

claim and that it was timely filed. The admission of this fact is

enough to confer subject matter jurisdiction on the district court

and to mandate our reversal of the dismissal of Paul's complaint.

This is the only legal basis for establishing subject matter

jurisdiction in the district court. On remand, Paul can challenge

the legality of the entire course of conduct by the RTC with

respect to his claims for the return of property.

The judgment of the district court dismissing Paul's complaint

for lack of jurisdiction is REVERSED and the case is REMANDED for

further proceedings not inconsistent with this opinion.