IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-31127

FEDERAL DEPOSIT INSURANCE CORPORATION

as Receiver for New Orleans Federal

Savings and Loan Association,

Plaintiff-Appellee,

versus

HARRY LEE, Sheriff and Ex-Officio Tax Collector

for the Parish of Jefferson, and 

McNAMARA INVESTMENT CORPORATION,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

December 29, 1997

Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This is an appeal of an order ofsummary judgment entered by the district court. The district

court held that appellee was deprived of its due process right to notice before the tax sale of its

property. In the district court, appellants argued that neither appellee’s due process nor its property

rights were diminished by the tax sale at issue. For the following reasons we affirm the judgment

below.
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BACKGROUND

The pertinent facts in this case are not disputed. In the 1980s, I Twelve Partnership (I-12)

was the owner of certain real estate located in Jefferson Parish, Louisiana, which was mortgaged in

favor of New Orleans Federal Savings and Loan Association (New Orleans Federal). The collateral

mortgage was duly recorded in the public records ofJefferson Parish. In 1986, New Orleans Federal

was declared insolvent, and the Federal Savings and Loan Insurance Corporation (FSLIC) was

appointed receiver. In 1988, FSLIC obtained a judgment in its favor and became judicial mortgagee

of the property, which was filed in the public records of Jefferson Parish. FSLIC filed a request for

notice of foreclosure under La. Rev. Stat. Ann. § 13:3886, but did not request notice of a tax

delinquency under La. Rev. Stat. Ann. § 47:2180.1.

By federal statute, the FSLIC was abolished, and the Federal Depository Insurance

Corporation (FDIC) replaced FSLIC as receiver for New Orleans Federal.

In May 1991, Harry Lee, Sheriff and Ex-Officio Tax Collector for Jefferson Parish,

transferred the property to McNamara Investment Corporati on (MIC) at a tax sale for the

nonpayment of taxes for 1990. Notice of a tax delinquency was mailed to I-12, the property owner,

but not to the FDIC, FSLIC, or New Orleans Federal, the current and previous holders of the

collateral mortgage. The public records did not show that FDIC was listed as successor to FSLIC's

interests. Soon after the tax sale, MIC informed FDIC of the tax sale and inquired whether FDIC

would be filing for redemption of the property. According to MIC, FDIC indicated that it was not

going to repair or maintain the property and that it did not intend to redeem the property.
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A little over three years following the sale, in July 1994, FDIC filed a writ of mandamus in

state court to compel Sheriff Lee to issue a redemption deed to FDIC for the property. The state

court denied and dismissed the writ of mandamus, stating that FDIC had not reimbursed MIC for

maintenance and repair of the property prior to redemption as required by La. Rev. Stat. Ann.

47:2222. FDIC subsequently filed this action in the district court, seeking to have the court declare

the tax sale null and void as a violation of FDIC's constitutional due process right to notice before

the sale.

The district court decided the matter by summary judgment, and ruled in favor of FDIC,

stating that it had been deprived o f its constitutional due process right to notice required under

Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1987). The court declared the tax sale null and

void. MIC filed a motion for new trial or, alternatively, to alter and amend the judgment under Fed.

R. Civ. P. 59(b), (e), which the district court denied. MIC and Lee timely appealed the judgment.

STANDARD OF REVIEW

We review the grant of summary judgment de novo. Guillory v. Domtar Industries, Inc., 95

F.3d 1320, 1326 (5th Cir. 1996). The same summary judgment standard that applies to the district

court applies to this Court. Summary judgment is warranted when the record, as a whole, "the

pleadings, depositions, answersto interrogatories, and admissions onfile, together with the affidavits,

if any show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); Celotex v.

Catrett, 477 U.S. 317, 322 (1986). The facts of this case were not disputed, leaving only a

determination of law for this Court.

DISCUSSION
 

1The record reflects that FDIC/Receiver raised § 1825 in its first Amended Complaint, which was

filed on August 21, 1995. Appellant Lee answered FDIC’s first Amended Complaint on September

12, 1995; MIC answered it on October 10, 1995. On May 7, 1996, MIC also was granted leave to

file an Amended Answer to FDIC’s first Amended Complaint. The district court did not grant

summary judgment until July 12, 1996.

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Appellants, MIC and Lee, argue on appeal that (1) FDIC, as a government agency, does not

have a due process right under the Fifth or Fourteenth Amendments, (2) even if FDIC does have a

due process right to notice prior to the tax sale, such right was not violated in this case, because

FDIC failed to request notice under La. Rev. Stat. Ann. 67:2180.1, and because its name was not

reasonably ascertainable, and (3) FDIC's property rights were not diminished or prejudiced by the tax

sale. Appellant Lee also argues that FDIC's claim to annul the tax sale should have been brought with

its writ of mandamus act ion filed in state court, and is therefore barred by res judicata. Both

appellants assert that 12 U.S.C. § 1825(b)(2) is not available to the FDIC on appeal because the

statutory ground was not argued below1and the scope ofthe statute isinapplicable to the facts before

us. 

Appellee, reiterates its due process argument made to the district court while advancing an

alternative argument that the tax sale at issue in this case was void because it was in violation of 12

U.S.C. § 1825(b)(2) which requiresthat theSheriffobtainthe FDIC’s consent before proceeding with

the sale. The statute states in pertinent part:

No property of the Corporation shall be subject to levy, attachment, garnishment,

foreclosure, orsale without consent ofthe Corporation, nor shall any involuntary lien

attach to the property of the Corporation. 

Before addressing the applicability of the statute, we must first note that appellants correctly

assert that the district court did not consider § 1825's viability. Although the statute was plead in

FDIC’sfirst Amended Complaint, it is undisputed that FDIC did not assert the statute’s applicability
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before the district court during the summary judgment proceedings. Instead, FDIC urged as its

principal argument the proposition that, as a governmental agency, it enjoyed a constitutional due

process right which had been violated by state procedures. The district court granted summary

judgment based on the constitutional due process argument. While it is the settled law of our circuit

that the district court should have the first opportunity to address all of the issues contained in the

appeal, this usually controlling precept has less force when the case turns on a statutory point of law

subject to our de novo review and there are no countervailing reasons warranting remand to the

district court.

This Court has previously considered a summary judgment case involving the FDIC as

appellee where a somewhat similar procedural scenario was presented. In FDIC v. Laguarta, 939

F.2d 1231 (5th Cir. 1991), the FDIC’s motion for summary judgment was granted by the district

court based on its principal argument that the D’Oench Duhme doctrine foreclosed Laguarta’s

defense. Apparently prescient that its D’Oench Duhme contention had an “Achilles’ heel,” the FDIC

sought to fortify its appellate posture by raising, via a supplemental brief filed on the eve of oral

argument, three additional grounds for affirming the district court’s summary judgment. After

holding that the FDIC’s D’Oench Duhme defense was not applicable to the dispute, this Court

concluded after reviewing the sparse record, that the remaining issuesrelated to Laguarta’s defenses

to the main demand and to the FDIC’s cross claim contained unresolved material facts sufficient to

preclude entry of summary judgment in favor of FDIC. Before remanding the case to the district

court to proceed anew, the panel paused to determine the ancillary question of whether the new legal

issues raised by the FDIC on appeal should be considered.
 

2While surveying the law of different jurisdictions, Judge Garwood found that other circuits are

in agreement with this proposition. See Ramirez de Arellano v. Weinberger, 745 F.2d. 1500, 1537

(D.C. Cir. 1984) (en banc) (citing Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333,

334 (5th Cir. 1978), vacated on other grounds, 471 U.S. 1113 (1985); Charbonnages de France v.

Smith, 597 F.2d 406, 416 & n.9 (4th Cir. 1979) (dictum); Box v. A & P Tea Co., 772 F.2d 1372,

1376 (7th Cir. 1985) (citing Frank C. Bailey, supra), cert. denied, 478 U.S. 1010 91986); see also

Arlinghaus v. Ritenour, 622 F.2d 629, 638 (2d Cir.), cert. denied, 449 U.S. 1013 (1980). But see

Paskaly v. Seale, 506 F.2d 1209, 1211 n.4 (9th Cir. 1974) (appellate court can affirm on any ground

supported by the record and discussed in the appellate court briefs). 

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Judge Garwood, writing for the Court opined:2

We hold that it would not be proper under the circumstances of this case to

affirm a summary judgment on these grounds that were neither raised below by the

Receiver [FDIC] nor even raised sua sponte by the district court. It is true that we

may affirm a summary judgment on a ground not relied upon by the district court.

This Court has clearly held, however, that it will generally not consider a new ground

on appeal raised by an appellant in opposition to summary judgment. The same

should apply to new grounds raised by an appellee in defense of summary judgment

where the parties were not afforded an opportunity to develop the issue below, and

it was not implicit or included in the issues or evidence tendered below, so that the

party was not on notice of the need to meet it, and the record appears not to be

adequately developed in that respect. Laguarta, 939 F.2d at 1240 (citations omitted).

 

Judge Garwood’s careful opinion, while holding firmly to the generalrule counseling against

our considering new grounds on appeal that were not raised or considered by the district court,

astutely observed that the general rule need not always apply if the circumstances warrant to the

contrary. At footnote 20 of Laguarta, the door for an exception to the general rule was purposely

left open, to wit: “We do not suggest that if the issues were implicit or included in those raised below

or the evidence in support thereof, or if the record appears to be adequately developed in respect

thereto, that affirmance may not rest thereon.”

The FDIC’s presence in the instant case as appellee, as it was in Laguarta, does not make us

chary to apply the aforementioned exception to the unique circumstances before us. Unlike those

presented in Laguarta, the claims at issue in the instant case are straightforward and without any
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evidentiary contentions by either side. The FDIC raised § 1825 before the district court in its first

Amended Complaint, on August 21, 1995, almost one year prior to the district court’s entry of

summary judgment on July 12, 1996. Thus, judgment was entered well after Lee and MIC answered

the Amended Complaint. The potential relevance of § 1825 to the question of whether the tax sale

was null and void was explicitly raised by the pleadings, notwithstanding the absence of argument

thereon at summary judgment. Moreover, in spite of the state of the pleadings, the legitimate concern

that appelleesmight have been blindsided by the FDIC’s alternative argument on appealwas dispelled

by this Court’s ordering ofsupplemental briefing addressing the applicability vel non of § 1825 to the

instant dispute. The absence of any factual dispute was made even clearer by the supplemental briefs.

Unlike the scenario in Laguarta, there are no tangled defenses and cross-claims to be unraveled by

the district court, such that a remand would clearly be in order. It is undisputed that the record is

fully developed. Additionally, prudent use of judicial resources favors our exercise of plenary review

over the purely legal claim advanced by the FDIC.

We hold that for the forgoing reasonsit would be proper under the circumstances of this case

to affirm summary judgment on the statutory grounds asserted by the FDIC on appeal should we

determine that the scope of the statute is controlling. Having determined that remand is not

warranted in this case, we turn to consider the statute’s force.

If FDIC’s position on this question is correct there is no occasion to reach the constitutional

issues presented by appellants. See Dandridge, 397 U.S. at 475-76; Schweiker v. Hogan, 457 U.S.

569, 584 (1982) (“where a party raises both statutory and constitutional arguments in support of a

judgment, ordinarily we first addressthe statutory argument in order to avoid unnecessary resolution

of the constitutional issue”).
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Section 1825(b)(2) of Title 12 was enacted to prevent the state from enforcing the collection

of taxes so as to destroy pre-existing federal liens in the absence of the consent of the federal

government. Matagorda County v. Russell Law, 19 F.3d 215, 219 (5th Cir. 1994). The mandate of

12 U.S.C. § 1825(b)(2) applies in all situations in which the FDIC is acting as receiver. See 12

U.S.C. § 1825(b). Further, this Court has previously found that the meaning of the statute is plain,

that a lien held by the FDIC is “property” within the meaning of the statute, and that said lien cannot

be extinguished through a tax sale conducted without the consent of the FDIC. Matagorda County,

19 F.3d 215 at 220-23; see also Donna Indep. Sch. Dist. v. Balli, 21 F.3d 100 (5th Cir. 1994). The

force of the statute’s prohibition of foreclosures without FDIC consent is equally applicable to tax

sales. We, therefore, hold that 12 U.S.C § 1825(b)(2) applies in the instant case and that the tax sale

conducted by Jefferson Parish is null and void. It is, thus, unnecessary for this Court to reach the

constitutional issues presented by appellants MIC and Lee. 

CONCLUSION

The controlling principle ofthis case isthat 12 U.S.C. § 1825(b)(2) representsthe express will

of Congress that the FDIC must consent to any deprivation of property initiated by a state. Given

the particular circumstances presented here we need not ignore this expressstatutory pronouncement

merely because it was not prioritized in the summary judgment proceedings below. Because our

review is plenary and there are no disputed issues of material fact, we hold that the tax sale at issue
 

3Notwithstanding our holding nullifying the tax sale, we note in passing that the equities in this

case favor MIC’s claim for reimbursement for the costs of maintenance, repair and improvementsto

the property.

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was conducted without the consent of the FDIC. Accordingly, the tax sale violated 12 U.S.C. §

1825(b)(2) and thus is null and void.3 Summary judgment is AFFIRMED.