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. e du/thir dc ir c uit_1998/32Filed February 19, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1354

Gary E. Hindes, Samuel Rappaport, Raymond Perelman, Gary Erlbaum, Daniel Neduscin, individually and derivatively for Meritor Savings Bank, f/k/a The Philadelphia Savings Fund Society,

Appellants

v.

The Federal Deposit Insurance Corporation, in its corporate capacity and as receiver for Meritor Savi ngs Bank, f/k/a The Philadelphia Savings Fund Society; John/Jane Does 1-10, Directors, Officers, Agents, a nd Employees of the Federal Deposit Insurance Corporat ion; and Richard C. Rishel, in his official capacity as the Secretary of Banking of the Commonwealth of Pennsylvania.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 94-02355)

Argued December 12, 1997

BEFORE: GREENBERG, ROTH, and SEITZ, Circuit Judges

(Filed: February 19, 1998)Ken Carroll (Argued)

Kortney Kloppe-Orton Carrington, Coleman, Sloman & Blumenthal, L.L.P. 200 Crescent Court, Suite 1500 Dallas, TX 75201

Richard L. Bazelon

A. Richard Feldman

Bazelon & Less

1515 Market Street

7th Floor Philadelphia, PA 19102

Attorneys for Appellants

Ann S. DuRoss

Assistant General Counsel

Maria Beatrice Valdez Acting Senior Counsel Thomas C. Bahlo (Argued)

Counsel Federal Deposit Insurance Corporation 550 17th Street, N.W.

Room H-11126 Washington, D.C. 20429

Attorneys for Appellee Federal Deposit Insurance Corporation in its Corporate Capacity

2David Smith

Rolin P. Bissell

Theresa E. Loscalzo Schnader, Harrison, Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103

John J. Graubard (Argued)

Colleen J. Boles Charlotte M. Kaplow

David A. Birch Federal Deposit Insurance Corporation Legal Division

101 East River Drive

P.O. Box 280402 East Hartford, CT 06128-0402

Attorneys for Appellee Federal Deposit Insurance Corporation as Receiver for Meritor Savings Bank

D. Michael Fisher Daniel J. Doyle (argued)

Calvin R. Koons John G. Knorr, III Office of Attorney General Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120

Attorneys for Appellee Secretary of Banking of the Commonwealth of Pennsylvania

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Gary E. Hindes, and other shareholders of Meritor Savings Bank ("Meritor"), appeal from various distr ict court

3orders dismissing their claims against the Federal Deposit

Insurance Corporation ("FDIC") and the Pennsylvania Secretary of Banking ("Secretary"). Appellants cont end that the appellees wrongfully seized Meritor, thereby de priving them of their substantive due process rights. More particularly, appellants allege that the FDIC reneg ed on an agreement with Meritor with respect to the computat ion of its capital base, ignored Meritor's actual financia l condition when seizing Meritor, and engaged in a conspiracy w ith state officials to close the bank. Appellants also assert that the FDIC violated certain of its statutory duties a s receiver.

The district court had jurisdiction pursuant to 28 U.S.C. SS 1331 and 1367 and 12 U.S.C. SS 1819(b)(2)(A) and 1821(d)(6)(A). We have jurisdiction to review thefi nal orders of the district court pursuant to 28 U.S.C. S 1291. We exercise plenary review over the issues on this app eal, as they all require review of the district court's int erpretation and application of legal precepts. See Turner v. Sc heringPlough, Corp., 901 F.2d 335, 340 (3d Cir. 1990).

II. FACTS AND PROCEDURAL HISTORY

The Secretary1 closed Meritor, the largest savings bank in Pennsylvania, on December 11, 1992, and appointed t he FDIC as its receiver. The majority of appellants' a llegations concern the events leading up to that closing, as t hey primarily object to the propriety of the seizure of Meritor. Because the district court disposed of all of appel lants' claims on either motions to dismiss or for summary judgment, we accept as true their allegations, and therefore base our recitation of the facts on the allegations in the complaint.

In 1982, at the FDIC's request, Meritor assumed the deposit liabilities of Western Savings Fund Society of Philadelphia ("Western"). To induce Meritor to assu me these liabilities, the FDIC granted Meritor the right to amortize,

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1. The Secretary of Banking at the time of the even ts we describe was Sarah W. Hargrove. Since that time, Richard C. Rish el has replaced her. Thus, in this memo we refer to the Secretary as "he ." See Fed. R. App. P. 43(c).

4over a 15-year period, $796 million of "goodwill" r esulting

from the Western transaction ("grand-fathered goodw ill"), thereby increasing Meritor's regulatory capital bas e. This

transaction saved the FDIC and its Bank Insurance F und $400 million. The FDIC and Meritor evidenced this regulatory goodwill inducement in a written agreeme nt dated April 3, 1982. For over ten years, the FDIC a nd Meritor abided by that agreement.

In an agreement dated April 5, 1991, the FDIC reaff irmed the 1982 agreement and further agreed to renegotiat e Meritor's capital requirements if at any time Congr ess prohibited Meritor from considering this goodwill a s a capital component. This 1991 agreement was prompted when Meritor proposed that its 12% Subordinated Cap ital Noteholders ("Noteholders") exchange their notes fo r stock

and cash in order to infuse Meritor with more that $100 million of additional capital. Because the Notehold ers would become shareholders, the continuation of the goodwi ll as a regulatory asset of Meritor was crucial to them. Th erefore, before agreeing to the proposal, representatives of the Noteholders met with senior management of the FDIC, who assured them that the FDIC had no plans to disallow the grand-fathered goodwill. In fact, the FDIC encourag ed the Noteholders to participate in the exchange. The exc hange was completed in 1991, resulting in a $108 million increase in Meritor's capital.

On December 19, 1991, Congress adopted the FDIC Improvements Act of 1991, requiring the FDIC to ado pt new rules regulating bank capital. The FDIC published d raft regulations in the summer of 1991 which clearly per mitted Meritor's grand-fathered goodwill to continue to be included in its capital. When the FDIC adopted final regulat ions in September 1991, however, the regulations differed f rom the proposals so as to create doubt as to whether Merit or's grand-fathered goodwill would remain as capital. Th e FDIC refused Meritor's request to clarify the uncertaint y. The confusion created by the regulations resulted in a withdrawal of over $300 million in deposits from Me ritor.

The appellants allege that, by mid-September, the F DIC and the Secretary had begun to devise a plan to sei ze Meritor in mid-December 1992, which was approximate ly

5the time the new regulations would take effect, and to sell

its assets to one of Meritor's most aggressive comp etitors.

On December 11, 1992, the FDIC hand-delivered a let ter to Meritor reneging on its 1982 agreement and forma lly notifying Meritor that, under the new regulations, the grand-fathered goodwill no longer would be included in itscapital base. On the same day, the FDIC also handdelivered Meritor a "Notification to Primary Regula tor" ("Notification") which stated that the FDIC Board o f

Directors had found that Meritor was in violation o f its 1991 agreement regarding capital maintenance, was i n an unsound condition, and had inadequate capital. In t he Notification, the FDIC asserted that it immediately would institute proceedings to cancel Meritor's insurance if Meritor did not promptly satisfy certain capitaliza tion requirements. Because insurance was a prerequisite to Meritor's continued operation, the demand created a crisis. The Secretary, who the FDIC notified of these matte rs prior to notifying Meritor, used the crisis to justify th e immediate closing of the bank on the same afternoon. At that time, he appointed the FDIC as receiver of Meritor. Neither Meritor nor the appellants challenged the appointment under the state procedure available for that purpose. See Pa. Stat. Ann., tit. 71, S 733-605 (West 1990).

The appellants also allege that the FDIC and the Secretary disregarded circumstances which rendered the closing of Meritor inappropriate. In particular, ei ght days before the closing of the bank, Meritor sold a subs idiary bringing in capital which put it in compliance with the capital maintenance agreement. In addition, on Dece mber 9, 1992, two days prior to the closing of the bank, the FDIC received a bid of $181.3 million for Meritor's rema ining operations and deposits.

In August 1994, appellants filed this action agains t the FDIC, both in its corporate capacity ("FDIC-Corpora te") and as receiver of Meritor ("FDIC-Receiver"), various u nidentified agents and employees of the FDIC ("the Doe defendan ts"), and the Secretary. In general, the complaint allege s that these appellees deprived the appellants of their su bstantive due process rights2 and asserts claims under 42 U.S .C.

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2. The complaint also alleges a deprivation of the privileges and immunities guaranteed under the Fifth and Fourteent h amendments,

6S 1983, Bivens v. Six Unknown Fed. Narcotics Agents , 403

U.S. 388, 91 S.Ct. 1999 (1971), and the Administrat ive Procedure Act ("APA"). The complaint also alleges t hat the FDIC violated various statutory duties.

By order entered March 1, 1995, the district court dismissed the due process claims, embodied in Count I, against the FDIC and the Secretary as well as appel lants' APA claim in Count IV against FDIC-Corporate on the grounds that 12 U.S.C. S 1821(j) deprived it of jur isdiction to adjudicate those claims. The district court also dismissed the section 1983 claim against the FDIC, finding th at the FDIC was not a "person" under that statute.

By order entered September 6, 1995, the district co urt dismissed the claims against the FDIC for the enfor cement of its statutory duties. On November 8, 1996, the d istrict court approved a Stipulation of Dismissal of the re maining claims against the Secretary in his individual capa city, which the court entered on November 27, 1996. Thus, following the district court's order of November 27 , 1996, appellants' only remaining claims were against the Doe

defendants.

On November 15, 1996, appellants moved the district court to certify its March 1, 1995 order for an int erlocutory appeal. They argued that the claims involving the D oe defendants were substantially the same as those aga inst the FDIC and an immediate appeal would avoid the wa ste that would occur if this court eventually overturne d the district court's order. FDIC-Receiver and FDIC-Corp orate objected to the certification of the March 1, 1995 order, in part because the appellants' request did not includ e a request to certify the September 6, 1995 order as w ell, which they argued would result in "piecemeal" appel late review. Thereafter, appellants agreed to an expansi on of the proposed certification to include the district cour t's order of September 6, 1995.

On April 27, 1997, the district court denied the appellants' motion to certify its orders. The distr ict court

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but we need not address this allegation in detail g iven our disposition of

the claims.

7dismissed the claims against the Doe defendants bec ause

there were no named parties remaining in the action and because appellants failed to identify the fictitiou s parties by the close of discovery. Having dismissed the claims against the Doe defendants, the court concluded that its or ders were final so that it therefore denied the appellan ts' motion to certify as moot. On May 6, 1997, they filed a no tice of appeal.

III. DISCUSSION

A. TIMELINESS OF APPEAL

An untimely appeal does not vest an appellate court with jurisdiction. See Browder v. Director, Dep't of Cor rections, 434 U.S. 257, 264, 98 S.Ct. 556, 561 (1978); Marcan gelo v. Boardwalk Regency, 47 F.3d 88, 91 (3d Cir. 1995). T o be timely, the notice of appeal must have been filed w ithin 60 days from the date of the district court's entry of a final judgment. See 28 U.S.C. S 1291; Fed. R. App. P. 4(a )(1) (establishing a 60-day period for appeal where a fe deral agency or officer is a party). In general, a judgme nt is not final for purposes of appeal until the district cou rt has disposed of all claims against all parties. See Buz zard v. Roadrunner Trucking, Inc., 966 F.2d 777, 779 (3d Ci r. 1992); Jackson v. Hart, 435 F.2d 1293, 1294 (3d Cir . 1970) (per curiam).

Appellees have filed a motion to dismiss this appea l as untimely. They argue that the district court's orde rs were final, thereby starting the running of the time to appeal, on November 27, 1996, upon the district court's dismis sal of all claims except those against the Doe defendants. Thus, appellees aver that this appeal is untimely because the appellants did not file a notice of appeal until Ma y 6, 1997, 179 days after the district court's entry of a fina l judgment. We reject appellees' argument and hold that appella nts timely filed this appeal so that we have jurisdicti on to consider the appeal on its merits.

Doe defendants "are routinely used as stand-ins for real parties until discovery permits the intended defend ants to be installed." Scheetz v. Morning Call, Inc., 130 F .R.D. 34,

836 (E.D. Pa. 1990) (citations omitted). The case la w is clear

that "[f]ictitious parties must eventually be dismi ssed, if discovery yields no identities," id. at 37, and tha t an action cannot be maintained solely against Doe defendants. See Scheetz v. Morning Call, Inc., 747 F. Supp. 1515, 1 534-35 (E.D. Pa. 1990) (noting that Federal Rules do not contemplate a plaintiff proceeding without a tangib le defendant except in extraordinary circumstances), a ff'd on other grounds, 946 F.2d 202 (3d Cir. 1991); Breslin v. City and County of Philadelphia, 92 F.R.D. 764 (E.D. Pa. 1981) (dismissing complaint against identified defendants warrants dismissing unnamed defendants).

Appellees conclude from these cases that Doe defend ants are deemed dismissed, without a formal order by the district court, if they remain unnamed at the close of discovery or upon the district court's dismissal of all named defendants. We, however, need not reach the issue o f

whether the district court's order became final on November 27, 1996, by virtue of such a deemed dismissal of t he Doe

defendants.3 Even if a final order was entered on t hat date, this appeal was timely because the "Motion to Certi fy for Immediate Appeal" which appellants filed on Novembe r 15, 1996, was the functional equivalent of a notice of appeal and therefore satisfies the requirements of Fed. R. App. P.

3.

Fed. R. App. P. 3(c) requires that a notice of appe al specify the parties taking the appeal and the order s from which the parties appeal. Despite these requirement s, an "appeal will not be dismissed for informality of fo rm or title of the notice of appeal, or for failure to name a p arty whose intent to appeal is otherwise clear from the notice ." Id.

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3. We have case law indicating that "[a]n order tha t effectively ends the litigation on the merits is an appealable final jud gment even if the district court does not formally include judgment o n a claim that has been abandoned" by a party. Lusardi v. Xerox Corp., 975 F.2d 964, 970 n.9 (3d Cir. 1992) (quoting Jones v. Celotex Corp., 867 F.2d 1503, 1503- 04 (5th Cir. 1989) (per curiam)); see also Baltimor e Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 667 (7 th Cir. 1986). We again recognize this authority, but need not decide whether it would apply in this case because, as explained above, thi s appeal would be timely without reliance on it.

9Courts liberally construe the requirements for a no tice of

appeal. See Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 681-82 (1992); Torres v. Oakland Scavenger Co. , 487 U.S. 312, 316-17, 108 S.Ct. 2405, 2408-09 (1988). T hus, courts can find that a litigant has satisfied the requirements of Rule 3(c) even if the litigant file s a document that is "technically at variance with the letter of [Rule 3] . . . if the litigant's action is the func tional equivalent of what the rule requires." Torres, 487 U.S. at 316-17, 108 S.Ct. at 2408-09. Therefore, if a litig ant files a document, regardless of its title, within the time for appeal under Fed. R. App. P. 4, it is effective as a notic e of appeal provided that it gives sufficient notice of the par ty's intent to appeal. See Smith, 502 U.S. at 248-49, 112 S.Ct. at 682.

We have held that a "Petition for Permission to App eal"

filed under the mistaken belief that the district c ourt's order was interlocutory, but which notified the par ties and the court of the intention to appeal, functioned as a notice of appeal. See Landano v. Rafferty, 970 F.2d 1230, 1237 (3d Cir. 1992); see also San Diego Comm. Against Registration and the Draft v. Governing Bd. of Gros smont Union High Sch. Dist., 790 F.2d 1471, 1473-74 (9th Cir. 1986) (construing a Fed. R. App. P. 5(a) motion as a notice of appeal).

In this case, appellants filed documents which were the "functional equivalent" of a notice of appeal. On N ovember 15, 1996, appellants filed a "Motion to Certify for Immediate Appeal" in which they sought leave to file an inter locutory appeal of the district court's March 1, 1995 order. Thus,

even if the March 1 order became final on November 27, 1996, we will treat the motion, which specifically indicated an intention to appeal, and which was filed in the belief that the order remained interlocutory, as a notice of appeal. See Landano, 970 F.2d at 1237. Subsequently, appell ants also filed a reply to appellees' objection to the c ertification, which requested to expand the proposed certified ap peal to include the district court's September 6, 1995 orde r. Taken together, these documents notify the parties and th e court as to appellants' specific intention to seek appell ate review of both orders. Therefore, the documents were the functional equivalent of a de jure notice of appeal

.

10Furthermore, appellants filed these documents withi n the

period for a timely appeal under Rule 4. The "Motio n to Certify for Immediate Appeal" was filed after the d istrict court approved the stipulation of dismissal but bef ore the order actually was entered. Rule 4(a)(2) specifical ly addresses this scenario as it provides that "[a] no tice of appeal filed after the court announces a decision o r order but before the entry of the judgment or order is tr eated as filed on the date of and after the entry" of that o rder. Pursuant to this rule, we treat the motion as filed on November 27, 1996, after the entry of the dismissal order. Accordingly, this appeal is timely.4

B. DUE PROCESS AND APA CLAIMS

On March 1, 1995, the district court held that 12 U .S.C. S 1821(j) deprived it of jurisdiction over appellan ts' due process and APA claims, Counts I and IV respectivel y, and therefore dismissed those counts against all appell ees. By the same order, the district court also dismissed C ount III, a 42 U.S.C. S 1983 claim, as against the FDIC for f ailure to state a claim because the FDIC is not a "person" wi thin

that statute.5

We begin our merits analysis with a discussion of t he appellants' First Amended Complaint. The district c ourt analyzed the complaint as though Count I asserted a n independent cause of action for a due process viola tion against all appellees. We do not adopt this constru ction of the complaint.

Count I seeks the following remedies based upon an alleged due process violation: (1) a declaration th at the

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4. In any event, Judge Roth and Judge Seitz conclud e that this case is appealable because a timely notice of appeal was fi led from the order dismissing the Doe defendants.

5. Count III also asserts a section 1983 claim agai nst the Secretary in his individual capacity. On November 27, 1996, the district court entered a Stipulation of Dismissal of the claims against th e Secretary in his individual capacity. This appeal, therefore, does n ot concern Count III to the extent it asserts a claim against the Secretary in his individual capacity.

11FDIC, Doe defendants and the Secretary violated

appellants' substantive due process rights; (2) a d eclaration

that the FDIC's notification is void and a rescissi on thereof; (3) a declaration of the invalidity of the Secretar y's orders closing Meritor and appointing FDIC as receiver and rescissions thereof; and (4) the imposition of a co nstructive trust for Meritor's benefit nunc pro tunc. This cou nt, however, does not identify the source of the substa ntive cause of action for the alleged constitutional viol ation as against each appellee.

Accordingly, FDIC-Corporate urges us to dismiss Cou nt I as improperly seeking declaratory relief without as serting a

substantive cause of action. We decline to view the complaint so narrowly. Rather, we are required to c onstrue the pleadings "as to do substantial justice," Fed R . Civ. P. 8(f), and in favor of the appellants. See Budinsky v. Commonwealth of Pa. Dep't of Envtl. Resources, 819 F.2d 418, 421 (3d Cir. 1987); see also West v. Keve, 571 F.2d 158, 163 (3d Cir. 1978) (liberally construing a com plaint, which literally only sued defendants in their offic ial capacities, so as also to state a claim against the defendants in their individual capacities because t he complaint stated facts sufficient to constitute suc h a claim).

The due process violations alleged in Count I again st the FDIC and the Doe defendants properly are viewed as

constitutional claims asserted under section 1983 a nd Bivens, as alleged in Counts III and II respectivel y. Therefore, Count I does not assert a separate cause of action against these defendants, but seeks declarat ory and injunctive relief in addition to the relief request ed in Counts

II and III.

The due process claim alleged against the Secretary in his official capacity is a different matter, howeve r, because the complaint does not elsewhere identify a substan tive cause of action against the Secretary in his offici al capacity for a due process violation. While Count III assert s a claim against the Secretary, it does so only in his indiv idual capacity. Accordingly, although the complaint does not explicitly identify this claim as such, we construe it as asserting a section 1983 claim against the Secretar y in his official capacity.

12Thus, we proceed with our analysis as though the re lief

sought in Count I against the FDIC and the Doe defe ndants was sought in the counts alleging a right to relief pursuant to section 1983 and Bivens. Although our analysis o f these

counts takes a different course than that of the di strict court, we ultimately affirm its dismissal of these claims. We, like the district court, will not discuss the m erits of the Bivens claim because the Doe defendants properly we re dismissed on other grounds.

1. Section 1983 Claim

We begin our analysis with a discussion of the sect ion 1983 claim asserted against the FDIC. The district court dismissed this claim, holding that the FDIC was not a "person" within the meaning of section 1983 and the refore was not subject to section 1983 liability. The comp laint alleges that the FDIC, under color of state law, ac ted in concert with the Secretary and deprived appellants of their substantive due process rights. The district court held that

the FDIC could not be held liable under section 198 3 because it was not a "person" within the meaning of the statute. We agree.

Section 1983 creates a cause of action against "[e] very person who, under color of any [state law] . .. sub jects, or causes to be subjected, any citizen of the United S tates or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunitie s secured by the Constitution." 42 U.S.C. S 1983. Because sec tion 1983 provides a remedy for violations of federal la w by persons acting pursuant to state law, federal agenc ies and officers are facially exempt from section 1983 liab ility inasmuch as in the normal course of events they act pursuant to federal law. See District of Columbia v . Carter, 409 U.S. 418, 425, 93 S.Ct. 602, 606 (1973); see al so DalyMurphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988 ) (no section 1983 claim against federal officials acting pursuant to federal law); Zernial v. United States, 714 F.2d 431, 435 (5th Cir. 1983) (action taken pursuant to federal l aw by federal agents and private parties); Kite v. Kelly, 546 F.2d 334, 337 (10th Cir. 1976) (section 1983 is not appl icable to federal officers acting under federal law); Scott v . United

13States Veteran's Admin., 749 F. Supp. 133, 134 (W.D . La.

1990) (federal government and its agencies acting u nder federal law are not "persons" within section 1983), aff'd, 929 F.2d 146 (5th Cir. 1991) (per curiam).

It is a well-established principle, however, that f ederal officials are subject to section 1983 liability whe n sued in their official capacity where they have acted under color of state law, for example in conspiracy with state off icials. See, e.g., Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 199 0), aff'd on other grounds, 502 U.S. 21, 112 S.Ct. 358 (1991) ; Jorden v. National Guard Bureau, 799 F.2d 99, 111 n.17 (3d Cir. 1986) (citing Knights of the Klu Klux Klan v. East Baton Rouge Parish, 735 F.2d 895, 900 (5th Cir. 1984)); s ee also Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997); Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992 ); Olson v. Norman, 830 F.2d 811, 821 (8th Cir. 1987).

The allegations in the section 1983 claim, however, are against a federal agency, the FDIC, not federal off icials. We find no authority to support the conclusion that a federal agency is a "person" subject to section 1983 liabil ity, whether or not in an alleged conspiracy with state actors. We, therefore, hold that federal agencies are not " persons" subject to section 1983 liability.6

In Accardi v. United States, 435 F.2d 1239, 1241 (3 d Cir. 1970), we held that "[t]he United States and other governmental entities are not `persons' within the meaning of Section 1983." We reject appellants' suggestion that subsequent decisions of the Supreme Court have undermined Accardi's authority, except to the exten t that the Court now recognizes municipal liability under section 1983.7 See Monell v. Department of Soc. Servs., 436 U.S.

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6. We note that two district courts in this circuit recently have come to the same conclusion. See Alexander v. Hargrove, 199 7 WL 14436, No. Civ. 93-5510 (E.D. Pa. Mar. 31, 1995); Hurt v. Phil adelphia Hous. Auth., 806 F. Supp. 515, 524 (E.D. Pa. 1992).

7. In particular, appellants contend that in Accard i we relied on the Supreme Court's narrow interpretation of "person" i n Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961), which the Court overruled in Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct . 2018 (1977), to the

14658, 98 S.Ct. 2018 (1977). Accardi's holding that t he

United States was an improper party in a section 19 83 action, see Accardi, 935 F.2d at 1242, is not affec ted by the Supreme Court's subsequent recognition of municipal liability. Because the United States is not a prope r defendant in a section 1983 action, neither is a fe deral agency, an arm of the sovereign. See United States v. Vital Health Prods., Ltd., 786 F. Supp. 761, 778 (E.D. Wi s. 1992), aff 'd without opinion sub nom., United States v. L eBeau, 985 F.2d 563 (7th Cir. 1993); John's Insulation, In c. v. Siska Const. Co., 774 F. Supp. 156, 161 (S.D.N.Y. 1 991).

We also note that, relying upon Accardi, the Court of Appeals for the Fifth Circuit has held that "a fede ral agency is . . . excluded from the scope of section 1983 li ability." See Hoffman v. United States Dep't of Hous. & Urban Dev., 519 F.2d 1160, 1165 (5th Cir. 1975); see also LaRou che v. City of New York, 369 F. Supp. 565, 567 (S.D.N.Y. 1 974) (holding that the CIA, a federal agency, is not a p erson under section 1983).

For the reasons set forth above, we affirm the dist rict court's dismissal of the section 1983 claim against the FDIC. In light of our discussion regarding the prop er

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extent that Monroe held that local governments were not subject to section 1983 liability.

Although in Accardi we did not cite Monroe, we did rely on three cases which rejected liability for local government agenc ies based upon Monroe. See Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684 (1961); United States v. County of Phila., 413 F.2d 84 (3d Cir. 19 69); Broome v. Simon, 255 F. Supp. 434 (W.D. La. 1966). Appellants argue that because Monell reversed Monroe by holding that local governments a re subject to suit under section 1983, the efficacy of Accardi has bee n undermined.

Appellants essentially argue that under Monell and the Supreme Court's subsequent decision in Will v. Michigan Dep 't of State Police, 491 U.S. 58, 69, 109 S.Ct. 2304, 2311 (1989), federal e ntities are subject to suit under section 1983. In Monell, the Court inter preted "person" for purposes of section 1983 to include "bodies politic and corporate." See Monell, 436 U.S. at 688-89, 98 S.Ct. at 2034-35. Ap pellants argue that the FDIC is within the meaning of "bodies politic a nd corporate" because 12 U.S.C. S 1819 expressly characterizes the FDIC a s a "body corporate." We reject this rationale.

15construction of the complaint, our dismissal of the section

1983 claim makes it unnecessary to discuss whether 12 U.S.C. S 1821(j) would preclude the district court from granting the declaratory and injunctive relief requ ested in Count I to the extent it would operate against the FDIC.

2. Bivens Claim

Because we affirm the district court's dismissal of all of appellants' claims against the named appellees, we, like the district court, need not address the merits of appe llants' Bivens claim against the Doe defendants. Rather, we affirm

the dismissal of this claim because an action canno t proceed solely against unnamed parties. See Scheetz , 747 F. Supp. at 1534.

3. APA Claim

a. 12 U.S.C. S 1821(j)

We turn next to Count IV of appellants' complaint, which

seeks APA review of the FDIC's issuance of the Noti fication finding that Meritor was operating in an unsafe and unsound condition. Count IV alleges that the FDIC's determinations, as embodied in the Notification, we re arbitrary, capricious, an abuse of discretion and i n violation of appellants' constitutional rights. Appellants th us seek the following remedies: (1) a declaration that thef indings are null and void; (2) a rescission of the declarat ions; and (3) the imposition of a constructive trust. The dis trict court dismissed this claim as precluded by 12 U.S.C. S 18 21(j).

We agree.

The Financial Institutions, Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") establishes a comprehensive scheme for conservatorships and receiverships of insured financial institutions. Se e Richard B. Gallagher, Annotation, Construction and Applicat ion of Anti-Injunction Provision of Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) (12 U.S.C.A. S 1821(j)), 126 A.L.R. Fed. 43, 53 (1995). The FDIC 8 may be appointed as a conservator or receiver of an insure d

___________________________________________________ ______________

8. FIRREA grants the Resolution Trust Corporation ( "RTC") the same powers and protections as the FDIC when the RTC ope rates as a receiver. See 12 U.S.C. S 1441a(b)(5),S 1441a(b)(4) ; see also Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 112 n.6 (1st Cir. 1994).

16financial institution if, inter alia, the instituti on becomes

insolvent. See 12 U.S.C. S 1821(c); Gallagher, supr a, at 53. FIRREA also includes an anti-injunction provision i ntended to permit the FDIC to perform its duties as conserv ator or receiver promptly and effectively without judicial interference. See 12 U.S.C. S 1821(j); Gallagher, s upra, at 54. Section 1821(j) provides in relevant part that

[e]xcept as provided in this section, no cou rt may take any action, except at the request of the Boa rd of Directors by regulation or order, to restrai n or affect the exercise of powers or functions of the C orporation

as a conservator or a receiver.

12 U.S.C. S 1821(j).

In making the determinations and issuing the Notification, the FDIC clearly was acting in its co rporate capacity. Appellants argue that the district court erred in dismissing the APA claim based upon section 1821(j) because the section does not preclude judicial inte rvention where the FDIC acts in its corporate capacity. Thus

, appellants would have us interpret section 1821(j) to preclude only those orders directly against the FDI C as

receiver or as conservator.

We find, however, that the plain language of the st atute is not so limited. Rather, the statute, by its term s, can preclude relief even against a third party, includi ng the FDIC in its corporate capacity, where the result is such that the relief "restrain[s] or affect[s] the exerc ise of powers or functions of the [FDIC] as a conservator or a re ceiver." 12 U.S.C. S 1821(j) (emphasis added). After all, an action can "affect" the exercise of powers by an agency wi thout being aimed directly at it.

We note that our holding is not inconsistent with o ur decision in Rosa v. RTC, 938 F.2d 383, 397, 400 (3d Cir. 1991).9 In Rosa, we did not decide the reach of sec tion 1821(j) because the RTC conceded that the anti-inju nction

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9. This provision applies equally to the RTC. Thus, in considering the scope of section 1821(j)'s bar of equitable relief, courts refer to and rely upon cases involving the RTC and the FDIC interchan geably. See Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 112 n.6 ( 1st Cir. 1994).

17provision did not preclude the district court order s running

against it in its corporate capacity. See Rosa, 938 F.2d at 397, 400. Thus, Rosa did not hold that section 1821 (j) allows an injunction against the FDIC in its corpor ate capacity. Further, because the court did not discus s the issue, the nature of the district court orders runn ing against the RTC in its corporate capacity is not cl ear; thus, it is unclear whether the order running against the RTC in its corporate capacity would have had the type of e ffect we now describe. We, therefore, find that Rosa does no t control

the issue which we now confront.

Likewise, we note that the opinions of other courts of appeals do not speak directly to the issue at hand. See Bursik v. One Fourth St. N., Ltd., 84 F.3d 1395, 13 97 (11th Cir. 1996) (the section applies only if the RTC is acting in its capacity as receiver); Fischer v. RTC, 59 F.3d 1344, 1347 (D.C. Cir. 1995) (noting in dicta that courts have interpreted the section not to apply where the FDIC is acting in its corporate, as opposed to its receiver or conservator, capacity); Sierra Club v. FDIC, 992 F. 2d 545, 548-51 (5th Cir. 1993) (holding that the court coul d enjoin the FDIC because it was acting in its corporate cap acity).

The Court of Appeals for the First Circuit has indi cated quite clearly that a court order which operates aga inst a third party is precluded by section 1821(j) if the order would have the same effect from the FDIC's perspect ive as a direct action against it precluded by section 182 1(j). See Telematics Int'l, Inc. v. NEMCL Leasing Corp., 967 F.2d 703, 707 (1st Cir. 1992). The Telematics court held that the district court could not enjoin the FDIC from forec losing on a security interest. See id. at 705. But the court went further and also stated the following:

Telematics argues that even if the district court lacked the power to enjoin the FDIC from attaching the certificate of deposit held by Fleet Bank, t he court nevertheless maintained the authority to all ow Telematics to attach the certificate of depo sit. The

district court concluded that it lacked such authority, and we agree. Permitting Telematics to attac h the certificate of deposit, if that attachment w ere effective against the FDIC, would have the same effect , from the

18FDIC's perspective, as directly enjoining th e FDIC from

attaching the asset. In either event, the di strict court

would restrain or affect the FDIC in the exe rcise of its powers as receiver. Section 1821(j) prohibit s such a

result.

Id. at 707 (emphasis added). We agree with the Cour t of Appeals for the First Circuit's pragmatic suggestio n that section 1821(j) precludes a court order against a t hird party which would affect the FDIC as receiver, particular ly where the relief would have the same practical result as an order directed against the FDIC in that capacity.

The relief appellants seek in this case clearly wou ld "affect the exercise of powers or functions of the [FDIC] as conservator or receiver." Appellants' Count IV seek s a declaration that the Notification was void ab initi o and a rescission thereof. Because the FDIC's findings dir ectly and proximately caused the Secretary to close Meritor, the appellants also seek the imposition of a constructi ve trust as of the date Meritor was seized. Here, the reques ted relief against the FDIC-Corporate clearly would affect the FDIC's continued functioning as receiver and it effectivel y would throw into question every act of FDIC-Receiver.

Our opinion, however, should not be overread. The affecting of the powers of the FDIC-Receiver in thi s case, which appellants' requested relief would cause, if granted, would be dramatic and fundamental. We do not sugges t

that we would reach the same result in a case in wh ich the effect on the FDIC of an order against a third part y would be of little consequence to its overall functioning as receiver. That type of situation is not before us.

We reject appellants' contention that section 1818( j) cannot be interpeted to bar their constitutional cl aims because Congress did not express a clear intent for the section to preclude review of constitutional claims . See Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053 (1988). The Webster Court noted that this heightene d

standard is intended to avoid the "serious constitu tional question" which would result if a court interpreted a federal statute so as to deny all judicial review of a cons titutional claim. See id. at 603, 108 S.Ct. at 2053. Our inter pretation

19of section 1821(j) only denies appellants the decla ratory

and injunctive relief they now seek, but does not d eny them judicial review for their constitutional claims. Co urts uniformly have held that the preclusion of section 1821(j) does not affect a damages claim. See, e.g., Sharpe v. FDIC, 126 F.3d 1147, 1155 (9th Cir. 1997); Volges v. RTC, 32 F.3d 50, 53 (2d Cir. 1994); RPM Investments, Inc. v . RTC, 75 F.3d 618, 622 (11th Cir. 1996). Thus, our holdin g does not deny appellants a judicial remedy for an approp riate damages claim.10

b. Availability of APA Review

Even if we agreed that section 1821(j) did not prec lude the relief appellants seek, we would affirm the dis trict

court's dismissal of their claim for review under t he APA

because such review is not available in this instan ce. The APA grants a right of judicial review of an agency action to "[a] person suffering legal wrong because of any ag ency action, or adversely affected or aggrieved by agenc y action within the meaning of a relevant statute." 5 U.S.C. S 702. This right of review, however, is limited. First, t he APA only provides for review of those actions "made reviewab le by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. S 704. Second , the APA withdraws the right of review "to the extent th at statutes preclude judicial review." 5 U.S.C. S 701( a)(1).

We find that the district court did not have jurisd iction to

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10. We recognize that the defendants in such an act ion might be able to

assert various defenses but our concern here is onl y with the statute we are construing. This is also the circumstance in ot her places in the opinion in which we recognize the possibility of th e bringing of a damages action.

In fact, shareholders of Meritor have brought a dam ages action in the United States Court of Federal Claims against the U nited States predicated on the alleged wrongful issuance of the Notification. See Slattery v. United States, 35 Fed. Cl. 180 (1996). According to appellants this action is still pending and is predicated both on constitutional and breach of contract principles. Br. at 15-16. The Co urt of Federal Claims

rather than this court will make the determination of what effect, if any, this opinion has in that litigation.

20review the FDIC-Corporate's issuance of the Notific ation

because (1) it was not a final agency action, and ( 2) review expressly is barred by 12 U.S.C. S 1818(i)(1) and jurisdiction therefore is withdrawn pursuant to 5 U .S.C. S 701(a)(1).

The APA provides for review of a "final agency acti on for which there is no other adequate remedy in a court, " 5 U.S.C. S 704, but the APA does not define what cons titutes a "final" agency action. The Supreme Court has stat ed that the "core question is whether the agency has comple ted its decisionmaking process, and whether the result of t hat process is one that will directly affect the partie s." Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767 , 2773 (1992). The action must be a "definitive statement of [the agency's] position" with concrete legal consequence s. FTC v. Standard Oil Co., 449 U.S. 232, 241, 101 S.Ct. 488, 493 (1980); see also Darby v. Cisneros, 509 U.S. 137, 1 44, 113 S.Ct. 2539, 2543 (1993). We have held that "thefina lity of [an agency action] is determined by its consequence s" or its practical effects. Shea v. Office of Thrift Supervi sion, 934 F.2d 41, 44 (3d Cir. 1991); see also In re Seidman, 37 F.3d 911, 923 (3d Cir. 1994).

FDIC-Corporate issued Meritor a Notification which stated that, as a result of the grand-fathered good will no longer being considered in Meritor's capital base, Meritor was undercapitalized and in violation of the FDIC agreement. In the Notification, the FDIC also notif ied Meritor that procedures would be initiated to cance l Meritor's deposit insurance if Meritor did not come into immediate compliance with certain capital requireme nts. Based upon this information, the Secretary closed M eritor the same day that FDIC-Corporate issued the Notific ation.11

We agree with FDIC-Corporate that the Notification at issue here was "the first step in a multi-step stat utory

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11. The Secretary presumably acted pursuant to Pa. Stat. Ann., tit. 71, S 733-504(B) (West 1990), which states, in relevant part, that the Secretary need not conduct a hearing prior to takin g possession of a

financial institution "whenever immediate action sh all be necessary in order to protect the interests of the depositors, o ther creditors, or

shareholders of an institution."

21procedure which must be followed when FDIC-Corporat e

considers terminating an institution's deposit insu rance." Br. of Appellee FDIC-Corporate at 12; see also 12 U .S.C. S 1818(a)(2). After such a notification is issued, to terminate an institution's deposit insurance, the FDIC also, inter alia, must give notice of a hearing and conduct a hearing pursuant to statutory requirements. See 12 U.S.C. S 1818(a). In the context of this statutory procedu re, the issuance of the Notification does not represent the FDIC's definitive statement regarding the termination of a financial

institution's insurance status.

In Standard Oil, the Supreme Court held that the Fe deral Trade Commission's ("FTC") issuance of a complaint was not a final agency action and therefore was not rev iewable under the APA. See Standard Oil, 449 U.S. at 238, 1 01 S.Ct. at 492. The Court reasoned that the complaint was, by its terms, not a definitive statement; rather, t he complaint only was indicative of a "reason to belie ve" that the party was violating the law. See id. at 241, 10 1 S.Ct. at 493-94. The Court found that the complaint was a determination that an administrative proceeding wou ld be commenced but did not have the legal force or pract ical effect on the party's daily business activities ind icative of a final agency determination. See id., 101 S.Ct. at 4 94. The Court noted that the finality requirement has been interpreted "in a pragmatic way." See id. at 239, 1 01 S.Ct.

at 493.

We find that the issuance of the Notification was n ot the FDIC's definitive statement. See id. at 241, 101 S. Ct. at 493. Furthermore, the issuance of the Notification did not have the type of effect we described and required i n Shea v. Office of Thrift Supervision to be a final, reviewa ble action, namely that the agency action must be one that "imp ose[s] an obligation, den[ies] a right, or fix[es] some le gal relationship as a consummation of the administrativ e process." Shea, 934 F.2d at 44. Rather, the action that had legal effect was the Secretary's decision to close the bank,

not the FDIC's issuance of the Notification.

We also agree with the Court of Appeals for the Nin th Circuit, which has held that where a state actor re lies upon a federal agency's notice, the state action does no t convert

22the notice into a final agency act under the APA. S ee Air

California v. United States Dep't of Transp., 654 F .2d 616, 621 (9th Cir. 1981). In Air California, the Orange County Board of Supervisors ("Board") had adopted a policy designed to freeze the level of operations at the O range County Airport. See id. at 618. This policy resulte d in the exclusion of new carriers, ultimately inuring to th e benefit of Air California, an existing carrier at the airpo rt. See id.

Thereafter, the Board entered into agreements with the Federal Aviation Administration ("FAA") to gain fed eral airport funds, thereby subjecting the airport to fe deral regulations. See id. The FAA held a hearing to inve stigate allegations by carriers who unsuccessfully had appl ied for authorization to use the airport that the airport p olicy violated federal law. See id. Following an investig atory hearing, the FAA's Chief Counsel sent a letter to t he Board warning that failure to comply with federal regulat ions would result in the FAA pursuing sanctions, but tha t no formal action would be taken for 30 days. See id. T he FAA never took formal action, but as a result of the le tter to the Board, the Board met and decided to reallocate thef lights to include additional carriers, thereby reducing th e number of flights for which Air California was authorized. See id. Air California then sought APA review of the FAA letter . See id. The court held that the letter was not a final agen cy order because the Board's action, not the FAA letter, imm ediately affected Air California's rights. See id. at 621.

We reject appellants' attempt to distinguish Standa rd Oil and Air California; according to appellants, these cases are distinguishable because of the conspiracy the appel lants allege existed here. While appellants acknowledge t hat the Notification could have been the beginning of an in ternal adjudicative process, as in Standard Oil, they argu e that this possibility is immaterial in this factual cont ext. Here, appellants contend that the Notification was not in tended to commence an administrative investigation. They a ssert that by virtue of the alleged conspiracy, the FDIC knew and intended that the Secretary would close Meritor immediately when he received the Notification. Appe llants also argue that the complicity involved distinguish es the

FDIC's Notification from the FAA letter in Air Cali fornia

23because the FDIC issued the Notification knowing an d

intending it directly to affect Meritor. In additio n, appellants assert that because the FDIC specifically targeted Meritor

whereas the FAA directed its attention to the Board , not to the plaintiffs therein, there is a more direct effe ct on

Meritor associated with the FDIC's action than ther e was on the plaintiff in Air California by reason of the ch allenged

action in that case.

We acknowledge that the Secretary's closing of Meri tor precluded the need for a final agency action termin ating Meritor's insured status. However, appellants' fail ure to challenge the appointment of the receiver under the available state procedure, see Pa. Stat. Ann., tit. 71, S 733- 605 (West 1990), does not convert the Notification, an otherwise preliminary step in FDIC procedure, into afinal agency action reviewable under 5 U.S.C. S 704.

APA review is unavailable in this case also because 12 U.S.C. S 1818(i) precludes judicial review of the N otification, and the APA does not allow judicial review where an other statute specifically prohibits it, see 5 U.S.C. S 7 01(a)(1). Section 1818(i) precludes review of orders and noti ces except as specifically provided elsewhere in sectio n 1818. Section 1818(i)(1) provides in relevant part that

except as otherwise provided in this section . . . no court shall have jurisdiction to affect by i njunction or otherwise the issuance or enforcement of any notice or order under any such section, or to review, modify, suspend, terminate, or set aside any such no tice or

order.

The Supreme Court has found that this language is c lear. See Board of Governors of the Fed. Reserve Sys. v. MCorp. Fin., Inc., 502 U.S. 32, 39, 112 S.Ct. 459, 463 (19 91). In MCorp, the Court held that section 1818(i)(1) "prov ides us with clear and convincing evidence that Congress in tended to deny the District Court jurisdiction to review a nd enjoin the Board's ongoing administrative proceedings." MC orp, 502 U.S. at 44, 112 S.Ct. at 466; see also Groos Na t'l Bank v. Comptroller of the Currency, 573 F.2d 889, 895 ( 5th Cir. 1978) (noting that the section "in particular evinc es a clear intention that this regulatory process is not to be disturbed

24by untimely judicial intervention, at least where t here is no

`clear departure from statutory authority' ").

The question we now face is whether the section 181 8(i) applies only where there is such an ongoing adminis trative proceeding. As discussed above, here there is no su ch proceeding because the Secretary's decision to clos e Meritor based upon the Notification eviscerated the need fo r further proceedings to terminate Meritor's insured status. Moreover, to our knowledge, the only case law invol ving section 1818(i) is in the context of an ongoing administrative proceeding.

Yet the plain language of section 1818(i) broadly precludes the review of the issuance of any notice under any subsection. See 12 U.S.C. S 1818(i)(1); Henry v . Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994) (rejecting contention that the "orders" referred to in section 1818(i) are limited to those issued after administr ative hearings). Further, while section 1818 provides for review of certain notices and orders, such as those issued af ter a hearing, see 12 U.S.C. S 1818(a)(5) (providing for review of an order terminating an institution's insured statu s); 12 U.S.C. S 1818(h) (providing for review of orders an d notices issued after required hearings), it does not provid e for review of the issuance of this Notification, which was issued pursuant to section 1818(a)(1). Thus, by its terms section 1818(i) applies to this case and is not restricted to precluding judicial review which would interfere wi th an ongoing administrative proceeding. Based upon this plain meaning, we conclude that the district court did no t have jurisdiction to review the issuance of the Notifica tion.

Courts, however, have recognized a limited exceptio n to a statute's specific withdrawal of jurisdiction where the plaintiff claims that the agency acted in a blatant ly lawless manner or contrary to a clear statutory prohibition . See, e.g., Abercrombie v. Office of the Comptroller of C urrency, 833 F.2d 672, 674-75 (7th Cir. 1987); First Nat'l B ank of Grayson v. Conover, 715 F.2d 234, 236 (6th Cir. 198 3); Groos Nat'l Bank, 573 F.2d at 895. The roots of thi s socalled "statutory-authority" exception are in Leedo m v. Kyne, 358 U.S. 184, 79 S.Ct. 180 (1958).

25The Supreme Court has considered the application of this

exception to section 1818(i). See Board of Governor s of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 112 S.Ct. 459. In MCorp, the Court declined to apply th e exception, distinguishing it in two respects from t he situation in Kyne. First, the Court found that ther e were adequate means of review available upon a final determination by the agency. Second, the Court held that Kyne did not apply because there the preclusion was implied from congressional silence, whereas the pre clusion of section 1818(i) was express and clear. See id. a t 43-44,

112 S.Ct. at 465-66.

We recently have addressed the "statutory-authority " exception and emphasized that an integral factor in determining the applicability of the exception is t he clarity of the statutory preclusion. See Clinton County Com m'rs v. EPA, 116 F.3d 1018, 1928-29 (3d Cir. 1997) (en banc ) (citing Board of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 112 S.Ct. 459; Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428 (1977)), cert. denied, 118 S.Ct. 687 (1998). In rejecting the plaintiffs' contention tha t review was available under Kyne, in Clinton County we held tha t, as with section 1818(i), the section precluding review provided " `clear and convincing evidence' . . . that Congre ss intended to deny the district court jurisdiction to review E PA's ongoing remedial action." Clinton County, 116 F.3d at 1029.

We find that this exception does not apply to this case primarily for two reasons. First, the exception doe s not apply in the face of such clear preclusive language . Second, the FDIC did not act in a blatantly lawless manner. Although appellants may object to the FDIC's conclu sions, the FDIC acted pursuant to the requirement that it notify a financial institution upon making a determination that the financial institution was operating in an unsaf e financial condition. See 12 U.S.C. S 1818(a)(2).

We have not overlooked the appellants' arguments regarding the effect of our interpretation of the jurisdictional bar. First, they argue that where, a s here, the FDIC knowingly acts to eliminate section 1818 administrative review, section 1818(i)(1) cannot pr eclude judicial review, because the effect would be to pre clude all

26review of the issuance of the Notification. We reje ct this

contention because the result of our holding with r espect to the preclusion of section 1818(i) is to bar only AP A review

of the FDIC's issuance of the Notification. We are not moved by the lack of a remedy under the APA because secti on 1818(i) only precludes court action which would "af fect by injunction or otherwise the issuance or enforcement " of the Notification. We see no reason why, under proper circumstances, a plaintiff could not institute, and a district court could not entertain, an action for damages ba sed upon the FDIC's allegedly wrongful conduct without offending section 1818(i).

Second, appellants argue that that we should not construe section 1818(i)(1) to bar their constituti onal claims because Congress clearly must express an intent to preclude review of constitutional claims. See Webst er, 486 U.S. at 603, 108 S.Ct. at 2053. We reject this argu ment for the same reasons that we rejected it above in the c ontext of the jurisdiction bar of section 1821(j). Again, sec tion 1818(i)(1) precludes the declaratory and injunctive relief sought here, but on its face would not affect an ap propriate constitutional claim for damages.

4. Due Process Claim Against Secretary

We now turn to the claim in Count I against the Secretary which seeks a declaration of the unconstitutionality of the Secretary's order closin g Meritor and a rescission thereof. As noted above, we will t reat this claim as one based upon section 1983 against the Secretary in his official capacity. On appeal, the Secretary raises an Eleventh Amendment objection to this clai m. For the reasons we discuss below, we recognize but need not reach the Eleventh Amendment issue raised by this c laim because we find that the district court correctly d ismissed this claim as barred by 12 U.S.C. S 1821(j).

In general, the Eleventh Amendment prevents suits i n federal court against states, or state officials if the state is the real party in interest. See Ford Motor Co. v. D epartment of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350 ( 1945). The Amendment, however, does not bar such suits whe re

27the state has waived its immunity, see Atascadero S tate

Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142 , 3145 (1985), Congress validly has abrogated the state's immunity under the Fourteenth Amendment, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114 (1996) , or the well-established exception of Ex Parte Young, 209 U .S. 123, 28 S.Ct. 441 (1908), applies.

Of these narrow exceptions, the only one that argua bly applies in this case is that under Young. The princ iple which emerges from Young and its progeny is that a state official sued in his official capacity for prospect ive injunctive relief is a person within section 1983, and the

Eleventh Amendment does not bar such a suit. See Ha fer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 362-63 (19 91); Will v. Department of State Police, 491 U.S. 58, 71 n.10 , 109 S.Ct. 2304, 2312 n.10 (1989); Kentucky v. Graham , 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 3106 n.14 (1985 ) ("[O]fficial-capacity actions for prospective relie f are not treated as actions against the State.") (citing You ng, 209 U.S. 123, 28 S.Ct. 441).

Thus, the Eleventh Amendment does not bar this clai m against the Secretary, provided that the relief app ellants seek properly is construed as "prospective injuncti ve relief" or is ancillary to such relief. See Quern v. Jordan , 440 U.S. 332, 347-49, 99 S.Ct. 1139, 1148-49 (1979). The typ e of prospective relief permitted under Young is relief intended to prevent a continuing violation of federal law. S ee Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 146, 113 S.Ct. 684, 688 (1993) (the Young exception "does not permit judgments against state officers declaring that they violated federal law in the pas t"); Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940 (1986) (the focus of the Young exception is on addressing ongoing violations of federal law).

Appellants seek threefold relief against the Secret ary: (1) a declaration that the Secretary's order closing Me ritor was unconstitutional; (2) a rescission of the Secretary 's order closing Meritor; and (3) the imposition of a constr uctive trust nunc pro tunc. We, however, need not reach th e issue of whether that relief would be prospective because we recognize that we need not decide difficult jurisdi ctional

28issues where we can decide the case on another disp ositive

issue in favor of the party who would benefit by a ruling that we do not have jurisdiction. See Georgine v. A mchem Prods., Inc., 83 F.3d 610, 623 (3d Cir. 1996) (citi ng Norton v. Mathews, 427 U.S. 528, 530-33, 96 S.Ct. 2771, 27 74-76 (1976); Elkin v. Fauver, 969 F.2d 48, 52 n.1 (3d Ci r. 1992)), aff'd sub nom., Amchem Prods., Inc. v. Windsor, 117 S.Ct. 2231 (1997).

Although the issue here involves the application of the Eleventh Amendment rather than subject matter jurisdiction, we find that the issue "sufficiently partakes of the nature of a jurisdictional bar" to justify our application of the principle recognized in Georgine. See Colleg e Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997) (quoting Edelman v

. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363 (197 4)). Moreover, like the jurisdictional issues avoided in Georgine, questions under the Eleventh Amendment issue are constitutional in scope. Courts, of course, will av oid such questions where possible. See, e.g., Spector Motor Servs., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152 , 154 (1944).

Largely for the reasons we stated above regarding t he scope of section 1821(j), we agree with the distric t court that section 1821(j) would bar the declaratory and injunctive relief sought against the Secretary. As discussed above, section 1821(j) precludes injunctive and dec laratory relief which would restrain or affect the powers of the FDIC as receiver, even where that relief is directed aga inst a third party. See Telematics, 967 F.2d at 707. Rescinding the order closing Meritor clearly would have essentiall y the

same effect on FDIC-Receiver as would an order dire ctly enjoining the FDIC from continuing to act as receiv er.

Appellants urge that relief is warranted and not precluded by section 1821(j) where, as here, the gr avamen of the complaint is that the appointment of the rec eiver was improper, not that the FDIC was exercising its duti es as receiver improperly. We distinguish James Madison L td. v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996), cert. denied , 117 S.Ct. 737 (1997),12 upon which appellants rely for this

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12. The district court did not consider the applica bility of James Madison because the Court of Appeals for the District of Co lumbia Circuit decided

29proposition. In James Madison, the plaintiffs chall enged the

appointment of the FDIC as receiver of two national banks and requested "an injunction removing the FDIC as receiver; returning bank assets . . .; restoring th e banks' charters to allow them to resume business; and retu rning the banks' files." Id. at 1091. The court rejected the FDIC's claim that the requested relief violated section 18 21(j), reasoning that

[u]ntil now, this circuit has not considered whether section 1821(j) precludes federal courts fro m granting injunctive or declaratory relief if the [reg ulators] improperly appointed the FDIC receiver of a national bank. In our view, section 1821 does no such thing. Section 1821(j) states only that courts cann ot `restrain or affect the exercise of powers or function s of the [FDIC] as a conservator or receiver.' . . . It does not address federal court power to set aside an illegal appointment of a conservator or receiver. Co ngress knows the difference between judicial power to restrain an agency properly acting as a receiver and judicial power to remove an improperly appointed agen cy.

Id. at 1093. Thus, the court concluded that section 1821(j) bars a court from "interfering with the FDIC only w hen the agency acts within the scope of its authorized powe rs, not when the agency was improperly appointed in thefirs t place." Id.

We conclude that James Madison is inapplicable here

. The James Madison court held that the anti-injuncti on provision of section 1821(j) did not bar an APA cha llenge to the appointment of a receiver for a national bank. The court first noted that there is no statutory provision wh ich specifically provides for the review of the appoint ment of a

receiver for a national bank while there is such a specific provision for others. See James Madison, 82 F.3d at 1092. Compare 12 U.S.C. S 191 (appointment of receiver to a national bank) with 12 U.S.C. S 203(b) (judicial re view of

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that case after the district court dismissed appell ants' claims, except

for those against the Secretary in his individual capac ity and the Doe

defendants.

30the appointment of a conservator of a national bank ); 12

U.S.C. S 1464(d)(2)(E) (judicial review of an appoi ntment by the Director of Office of Thrift Supervision of con servator or receiver); 12 U.S.C. S 1821(c)(7) (judicial review where the FDIC appoints itself as receiver or conservator of a state chartered institution); 12 U.S.C. S 1787(a)(1)(B) ( review of appointment of National Credit Union Board as liqui dating agent for insured credit union). The court held tha t section 1821(j) did not clearly bar such review and review of the appointment under the APA was therefore proper. See James Madison, 82 F.3d at 1094. Thus, the court in James Madison predicated its holding allowing review unde r the APA on the lack of an adequate remedy.

We decline to apply the rationale of James Madison here for two reasons. First, APA review of the appointme nt of the FDIC as receiver is not proper here because the appointment was not made by a federal agency, but r ather by the Secretary, a state official. Second, James M adison concerned receiverships of national banks, whereas Meritor was a state-chartered bank, and there is or was ano ther available procedure for review of the appointment i n this case. See Pa. Stat. Ann., tit. 71, S 733-605 (West 1990).

Federal law explicitly provides for judicial review of the appointment of a receiver or conservator in certain specific instances where a receiver or conservator is appoin ted by a federal actor. See, e.g., 12 U.S.C. S 203(b) (provi ding for judicial review of the appointment of a conservator of a national bank within 20 days of the appointment); 1 2 U.S.C. S 1464(d)(2)(B) (providing for judicial revi ew of an appointment by the Director of Office of Thrift Sup ervision within 30 days of the appointment); 12 U.S.C. S 182 1(c)(7) (providing for judicial review within 30 days of th e appointment where the FDIC appoints itself as recei ver or conservator of a state chartered institution); 12 U .S.C. S 1787(a)(1)(B) (providing for judicial review with in ten days of the appointment of National Credit Union Board a s liquidating agent for insured credit union). Courts have held that where a plaintiff has not pursued these r emedies to challenge the appointment of a receiver or conse rvator, a subsequent action outside the applicable limitation period

is barred for failure to exhaust administrative rem edies. See

31Lafayette Fed. Credit Union v. National Credit Unio n Admin.,

960 F. Supp. 999, 1005 (E.D. Va. 1997), aff'd, ___ F.3d ___ (4th Cir. 1998) (table).

The same principle applies here where there is an adequate state procedure available to challenge the appointment of a receiver by the Secretary.13 In cl osing Meritor, the Secretary acted pursuant to Pa. Stat. Ann., tit. 71, S 733-504B (West 1990), so that his action was subject to review under Pa. Stat. Ann., tit. 71, S 733-605 (West 1990), which provides that "[a]ny institution whose business or property the secretary has taken posses sion as receiver, may, at any time within ten days after th e secretary has become receiver, apply to the court f or an order requiring the secretary to show cause why he should not be enjoined from continuing as receiver." This state procedure is consistent with the federal policy of requiring a swift challenge to the appointment of a receiver. See, e.g., 12 U.S.C. S 203(b) (providing 20 days to seek judic ial review); 12 U.S.C. S 1464(d)(2)(B) (providing 30 da ys to seek judicial review); 12 U.S.C. S 1821(c)(7) (providing 30 days to seek judicial review); 12 U.S.C. S 1787(a)(1)(B) (p roviding ten days to seek judicial review).

The district court refused to require the appellant s to have availed themselves of the state procedure beca use it concluded that such a requirement effectively would permit a state statute to foreclose appellants' constituti onal claims. In so holding, the district court apparently concei ved of such a requirement as imposing a 10-day statute of limitations on any claim relating to the seizure of the bank.14

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13. Appellants suggested at oral argument that the statute does not apply here because it only provides for review wher e the Secretary is appointed as receiver. Tr. of oral arg. at 10-11. W e recognize that there is scarce case law interpreting Pa. Stat. Ann., tit . 71, S 733-605, but we see no reason why the Pennsylvania statute would no t apply where the Secretary has designated another to act as receiver

.

14. Citing Pa. Stat. Ann., tit. 71, S 733-605, the district court stated

that "[t]he defendants have asserted a number of argumen ts in support of their individual motions, foremost among them the c laim that the plaintiffs are barred from pursuing their constitut ional claims here because of the ten day limitation on applying for c ourt orders placed by Pennsylvania law." The district court found "that t he plaintiffs are not prejudiced in their ability to bring their constitu tional claims here by

the law in Pennsylvania" but left open the possibility that "the defenses of waiver, estoppel, or laches may be raised at a late r date."32Once again, we emphasize the limits of our holding. We

hold that section 1821(j) precludes the relief soug ht here, namely a rescission of the Secretary's appointment of a receiver, because it would wholly prevent the FDIC from continuing as receiver, where there is an adequate procedure available to challenge the appointment of a receiver. As we state elsewhere in this opinion, th is holding is based upon section 1821(j)'s preclusion of remed ies and does not foreclose the possibility of proper consti tutional claims seeking other remedies.15

We also find inapplicable the case law cited by app ellants in which courts have declined to apply certain stat e procedural requirements to plaintiffs asserting fed eral civil rights actions in federal court. See Felder v. Case y, 487

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15. Appellants' also argue that an action pursuant to Pa. Stat. Ann., tit. 71, S 733-605 could not be brought in federal court because the statute provides for exclusive jurisdiction in state court. This argument does not

alter our conclusion.

First, appellants are incorrect in their blanket as sertion that the statute vests exclusive jurisdiction in state court . Although the statute provides that a party must make application to "the court," which is defined as "[t]he court of common pleas in the coun ty in which the corporation or person has its principal or only pla ce of business in the Commonwealth; or, where an institution of which thi s Secretary is receiver is concerned, the particular court in whic h the certificate of possession . . . is filed," see Pa. Stat. Ann., tit . 71, S 733-2 (West 1990), a state statute cannot be applied so as to limit a federal court's supplemental jurisdiction. See, e.g., Scott v. Scho ol Dist. No. 6, 815 F. Supp. 424, 429 (D. Wyo. 1993) (holding that state s tatute which purported to establish exclusive jurisdiction in st ate court is unconstitutional to extent it preclude federal cour ts from exercising supplemental jurisdiction over the state claims). T hus, for example, if a plaintiff instituted a proper damages suit in feder al court within ten days of the appointment of a receiver by the Secretary, the state statute could not be interpreted to preclude the federal court fr om exercising supplemental jurisdiction over an action under Pa. Stat. Ann., tit. 71,

S 733-605.

Second, we acknowledge that our example is not real istic in many cases given the brevity of the time period in the s tate statute. We see no reason, however, why our conclusion should be alter ed by the fact that an action to challenge the appointment of the recei ver pursuant to the state procedure ordinarily would not be in federal court.

33U.S. 131, 108 S.Ct. 2302 (1988) (notice of claim st atute);

Burnett v. Grattan, 468 U.S. 42, 50-55, 104 S.Ct. 2 924, 2929-32 (1984) (state statute of limitations); Pats y v. Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568 (1982) (holding that a civil rights plaintiff need not exh aust state administrative remedies). These cases are inapposit e because the Court based the holdings on the notion that state laws or requirements which are inconsistent w ith federal law or its objectives are subordinated to t he federal law by virtue of the Supremacy Clause. As the Felde r Court noted, applying a state statute of limitations whic h provides only a truncated period in which to file an action in civil rights cases "inadequately accommodate[s] the compl exities of federal civil rights litigation." Felder, 487 U. S. at 140,

108 S.Ct. at 2307.

Here, requiring appellants to have availed themselv es of the Pennsylvania procedure to challenge the Secreta ry's taking of possession of the bank would not undermin e federal policy. To the contrary, as we noted above, the state requirement is consistent with the federal policy o f requiring swift objection to the appointment of a r eceiver.

C. ENFORCEMENT OF FDIC's STATUTORY

OBLIGATIONS

The district court also dismissed Counts V and VI, in which appellants sought to enforce certain statutor y duties

of the FDIC. We affirm the dismissal of these count s because there is no implied private right of action to enforce the FDIC's duty to maximize gain and minimize loss in its disposition of assets and the shareholders have no enforceable right to an accurate accounting.

1. FDIC's Duty to Maximize Gain and Minimize Loss i n its Disposition of Assets

In its September 6, 1995 order,16 the district cour t

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16. The district court initially dismissed this cla im, embodied in Count V of appellants' First Amended Complaint, for lack of jurisdiction by order dated February 28, 1995. The district court held th at the appellants had

failed to exhaust their administrative remedies. Sh ortly thereafter, the court reinstated the claim after appellants complet ed their pursuit of those procedures. Therefore, the September 6, 1995 disposition of this claim is the subject of this appeal.

34dismissed appellants' claim for money damages for t he

FDIC-Receiver's alleged failure to comply with its statutory duty to maximize the gain and minimize the loss in the disposition of Meritor's assets. See 12 U.S.C. S 1821(d)(13)(E).17 The district court held that th is provision neither expressly nor impliedly grants a private ri ght of

action to individual shareholders.18 See exhibit B to appellant's brief.

The standard announced in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975), guides our inquiry into whether section 1821(d)(13)(E) impliedly grants shareholders of a f ailed financial institution a private right of action to enforce the FDIC-Receiver's statutory obligations. In Cort, the Court announced that courts should consider the following four factors to determine whether a statute impliedly gr ants a private right of action: (1) whether the plaintiff is a member

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17. Section 1821(d)(13)(E) provides:

In exercising any right, power, privilege, o r authority as

conservator or receiver in connection with any sale or d isposition of assets of any insured depository institution for which the Corporation has been appointed conservator or receiver, incl uding any sale or disposition of assets acquired by the Corpor ation under section 1823(d)(1) of this title, the Corporation sh all conduct its operations

in a manner which--

(i) maximizes the net present value return f rom the sale or disposition of such assets;

(ii) minimizes the amount of any loss realiz ed in the resolution of

cases;

(iii) ensures adequate competition and fair and consistent

treatment of offerors;

(iv) prohibits discrimination on the basis o f race, sex, or ethnic groups in the solicitation and consideration of offers; and

(v) maximizes the preservation of the availa bility and affordability of residential real property for low- and moder ate-income individuals.

18. Appropriately, appellants do not appeal the dis trict court's decision

to the extent that the court held that the statute does not expressly grant appellants a private right of action. See Tou che Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485 ( 1979) (holding thata right of action must be clear from the text of th e statute).

35of the class for whose special benefit the statute was

created; (2) whether there is either an explicit or implicit legislative intent to create or deny a private reme dy; (3) whether an implied remedy is consistent with underl ying policies of the statute; and (4) whether the cause of action is one that traditionally is relegated to state law and the area is a state concern so that it would be inappro priate to imply a federal cause of action. See id. at 78, 95 S.Ct. at

2088.

In deciding whether to recognize an implied private right of action, we ascertain the intent of Congress;"[u] nless such `congressional intent can be inferred from the language of the statute, the statutory structure, o r some other source, the essential predicate for implicati on of a private remedy simply does not exist.' " Karahalios v. National Fed'n of Fed. Employees, Local 1263, 489 U .S. 527, 532-33, 109 S.Ct. 1282, 1286 (1989) (quoting Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516 (1988)). Thus, we recently have noted that we s hould focus our inquiry on the first two Cort factors. Se e Mallenbaum v. Adelphia Communications Corp., 74 F.3 d 465, 469 (3d Cir. 1996).

Appellants contend that the district court erred by failing to give proper consideration of two circumstances w hich distinguish this case from others involving receive rships: (1) the existence of a surplus in the Meritor receivers hip; and (2) the appellants, as shareholders, have an expres s statutory right to distribution of this surplus. Ac cording to appellants, in the context of a receivership operat ing with a surplus, the Cort factors are met and thus we shoul d imply the existence of a private right of action in their favor.

We disagree. Our analysis of the Cort factors, with an emphasis on the first two, see Mallenbaum, 74 F.3d at 469,

leads us to the conclusion that there is no evidenc e of a congressional intent to provide for a private remed y. Because such intent is our ultimate guidepost, wefi nd that

the shareholders of a failed financial institution do not have a private right of enforcement of the FDIC's duty t o maximize gain and minimize loss in its disposition of the

institution's assets.

36First, appellants, as shareholders, are not members of a

class for whose special benefit Congress created se ction 1821(d)(13)(E). The duty to maximize gain in the di sposition of assets has implications broader than to benefit shareholders. The FDIC's duty to maximize gain and minimize loss primarily is intended to benefit the insurance fund by minimizing the claims against it, thereby r educing the cost to the taxpayers. Thus, the benefits gaine d by the

shareholders and other claimants are incidental to the primary intended beneficiaries, the insurance fund and the taxpayers. See FDIC v. Niblo, 821 F. Supp. 441, 455 n.59 & 456 (N.D. Tex. 1993); FDIC v. Updike Bros., Inc., 814 F. Supp. 1035, 1041-42 (D. Wyo. 1993).

In a similar context, we have noted that the FDIC d oes not have a duty to shareholders. See First State Ba nk of Hudson County v. United States, 599 F.2d 558, 563 ( 3d Cir. 1979). In Hudson County, we held that the FDIC's du ty to examine banks, see 12 U.S.C. S 1820, is intended to prevent losses which ultimately would result in cla ims against the insurance fund. See id. at 562-63. We a lso noted that while the examination incidentally might benefit the bank, its depositors, and its creditors, the pr imary purpose of the examination is to safeguard the insu rance fund. See id. at 563. Further, our conclusion is su pported by evidence in the legislative history that Congres s was concerned with reducing the costs to taxpayers. See H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess., 1, 514- 15, reprinted in 1989 U.S.C.C.A.N. 86, 308-09.

In addition, the duty to maximize gain and minimize loss does not operate for the special benefit of shareho lders where the receivership is operating with a surplus. Section 1821(d)(11)(B) establishes a shareholder right to

distribution of funds in a case where there is a su rplus after the payment of all claimants and administrati ve expenses.19 Given this right to distribution, appel lants

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19. The text of the section provides:

In any case in which funds remain after the depositors, creditors, other claimants, and administrative expenses are paid, the receiver shall distribute such funds to the depositor y institution's

37argue that the FDIC fulfills its statutory duty to maximize

gain in order to preserve the surplus, thus for the sole benefit of the shareholders. We disagree.

We recognize that the express right to distribution of surplus granted under section 1821(d)(11)(B) create s a direct interest in shareholders. See California Hou s. Sec., Inc. v. United States, 959 F.2d 955, 957 n.2 (Fed. Cir. 1992) (rejecting the argument that the shareholders did n ot have standing to claim an unconstitutional taking); Bran ch v. FDIC, 825 F. Supp. 384, 402-06 (D. Mass. 1993) (hol ding

that shareholders of a failed financial institution have standing to assert derivative claims because they r etain the right to distribution of surplus). This right, howe ver, does not transform the FDIC's duty to maximize gain and minimize loss into one inuring solely to the benefi t of the shareholders. The FDIC performs its section 1821(d) (13)(E) duty to maximize gain intending to reduce the claim s against the insurance fund, not to ensure that shar eholders

receive distribution.

Because the section clearly inures to the benefit o f other classes, the first Cort factor militates strongly a gainst granting a private remedy. Turning to the second Co rt factor, the parties agree that there is no statemen t in the legislative history which suggests that Congress in tended either to create or deny a private right of action to enforce the FDIC's duty to maximize gain and minimize loss. While congressional silence does not preclude a court fro m implying a private right of action where the other factors are satisfied, see Zeffiro v. First Pa. Bank & Trus t Co., 623 F.2d 290, 297 (3d Cir. 1980), here we find that the other factors do not support finding a private right of a ction.

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shareholders or members together with the ac counting report required under paragraph (15)(B).

12 U.S.C. S 1821(d)(11)(B).

Although Congress recently amended this section, th e amended provision only applies to institutions for which re ceivers were appointed

after the enactment of the amendment. See Pub. L. N o. 103-66, S 3001(a), 107 Stat. 312, 337 (1993). Thus, our dis cussion is governed by this version of this section prior to the 1993 a mendment.

38While we acknowledge that an action against a feder al

entity to enforce rights expressly granted under fe deral law traditionally is not relegated to state law, our in quiry ends upon our conclusion that the first two Cort factors are not met. See California v. Sierra Club, 451 U.S. 287, 2 98, 101 S.Ct. 1775, 1781 (1981) (noting that the second two factors "are only of relevance if the first two factors giv e indication of congressional intent to create the remedy").

2. FDIC's Duty to Provide Annual Accounting

The district court dismissed appellants' claim for a full and fair accounting from the FDIC-Receiver, to whic h appellants alleged they were entitled under 12 U.S. C. S 1821(d)(15)(A)-(C). The court found that the FDIC -Receiver had complied with the literal requirements of the p rovision by providing a copy of the annual accounting report to appellants upon their request, and refused to engra ft an enforceable duty to provide a correct accounting to

shareholders.

We again part with the district court's approach, b ut not

its result. While the district court focused on whe ther an accuracy requirement is implicit in the statute, we find the more appropriate inquiry to be whether the statute grants shareholders an implied private right of enforcemen t. We

hold that it does not.

The relevant portion of 12 U.S.C. S 1821(d)(15) pro vides:

(A) The Corporation as conservator or receiv er shall, consistent with the accounting and reporting practices and procedures established by the Corporatio n, maintain a full accounting of each conservat orship and receivership or other disposition of institu tions in

default.

(B) With respect to each conservatorship or receivership to which the Corporation was ap pointed, the Corporation shall make an annual account ing or report, as appropriate, available to the Sec retary of the Treasury, the Comptroller General of the Uni ted States, and the authority which appointed the Corpor ation as

conservator or receiver.

39(C) Any report prepared pursuant to subparag raph (B)

shall be made available by the Corporation u pon request to any shareholder of the depository institution for which the Corporation was appointed cons ervator or receiver or any other member of the publi c.

Although appellants urge us to imply a requirement of accuracy, they cite no authority which directly sup ports this view. Rather, they cite analogous authority, w hich we find unpersuasive in this context. See First Nat'l Bank of Gordon v. Department of Treasury, 911 F.2d 57, 62-6 3 (8th Cir. 1990).20 Despite this lack of authority, we re cognize that, in a practical sense, at some point the right to an accounting may be rendered meaningless if the accou nting is not accurate. Nevertheless, even if we were to i mply an accuracy requirement, we must affirm the district c ourt's dismissal of this claim because our analysis of the Cort

factors establishes that the shareholders do not ha ve a private right of action to enforce the FDIC duty.

The shareholders are not members of a special class for whose benefit the statute was created. Rather, the plain language of the statute puts shareholders on par wi th members of the general public. The statute gives shareholders and members of the public identical ri ghts -- the FDIC must make the annual report available to e ither upon request -- and the statute establishes these r ights in the same subsection. We see no reason, therefore, t o distinguish between shareholders and members of the general public for purposes of this statute.

Further, the legislative history is silent as to wh ether Congress intended to create a private remedy. Becau se the first two Cort factors are not satisfied, our inqui ry ends here. See Sierra Club, 451 U.S. at 298, 101 S.Ct. a t 1781.

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20. In First National, the court addressed the inte rpretation of a statute which requires financial associations to make repor ts of condition in accordance with 12 U.S.C. S 1811 et seq. See 12 U.S .C. S 161(a). The court found that a bank violated section 161(a) whe re the report of its condition was not accurate. Section 161(a) includes a requirement that the report be accurate to the best knowledge and be lief of the officers who sign it, but does not expressly make the bank r esponsible for an inaccurate report. In contrast, section 1821(d) doe s not include language concerning accuracy. Thus, First National is distin guishable.

40Because there is no indication of a congressional i ntent

to grant shareholders a private right to enforce th e FDIC's duty to provide an accounting, we will affirm the d ismissal of this claim. We emphasize, however, that we rende r no opinion on whether the FDIC has a duty to provide a n accurate accounting to those officials enumerated i n subsection (B).

IV. CONCLUSION

For the foregoing reasons, we will affirm the distr ict court's dismissal of appellants' claims.

41ROTH, Circuit Judge, concurring and dissenting:

I concur for the most part with the majority's thor ough and thoughtful opinion. I cannot, however, agree wi th their conclusion in Part III.C.2. that the appellants do not have a right to demand an annual accounting beyond what the FDIC might choose to provide to them. The statute s tates that the FDIC shall "consistent with the accounting and reporting practices and procedures established by t he [FDIC], maintain a full accounting of each. . . rec eivership" and that it shall provide to any shareholder or to any other member of the public a copy of its annual report wi th respect to each such receivership. 12 U.S.C. S 1821(d)(15)(A)-(C) (emphasis added).

I conclude from the above statutory language that t he shareholders, as well as the general public, have t he right to an annual report which has been prepared in a ma nner which is consistent with the accounting and reporti ng practices established by the FDIC. It has not been documented on the record here that the annual repor ts supplied to appellants by the FDIC do conform to su ch practices. I would therefore remand this issue to t he district court for a determination whether the reports in qu estion meet the required statutory standard. Cf. First Nat 'l Bank of Gordon v. Department of Treasury, 911 F.2d 57, 62-6 3 (8th Cir. 1990) (holding that bank violated 12 U.S.C.S 1 61(a), requiring an accurate report, when it submitted an inaccurate one to the Comptroller of the Currency).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

42