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April 16, 1992


The opinion of the court was delivered by: LOUIS H. POLLAK

 The focus of the contention is, of course, the statutory language 1821(d) and its many subparts of Title 12. It is clear that that statutory language does contemplate that the place where, in the first instance, claims should be asserted is RTC. And the form of the statutory direction is jurisdiction.

 1821(d)(13)(D) starts out, "Except as otherwise provided in this subsection, no court shall have jurisdiction over, (i), any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the corporation has been appointed receiver, including assets which the corporation may acquire from itself as such receiver; or, (ii), any claim relating to any act or omission of such institution or the corporation as receiver."

 The counterclaims in this case are counterclaims which are directed at RTC in its capacity as receiver for Nassau Savings and Loan Association, and as conservator for Nassau Federal Savings and Loan Association. The distinction evidently arises from the particular history which gives frame to this litigation.

 RTC was appointed receiver of Old Nassau, that is to say Nassau Savings and Loan, on March 8th, 1990. On the same date -- I think it was the same date -- the Office of Thrift Supervision, which had appointed RTC as receiver, provided for the creation of New Nassau, Nassau Federal Savings and Loan, and appointed RTC as conservator for New Nassau. RTC did not become receiver for New Nassau, which it now is, until August 23 of 1991.

 We have today provided for the substitution of RTC as receiver for New Nassau -- that is to say, Federal Savings and Loan, in an order that has already been determined. That clerically brings the caption into accord with the actual history of the litigation.

 The position of RTC is that a proper understanding of FIRREA precludes the exercise of subject matter jurisdiction by a court, this court, or any court of claims against RTC, whether as receiver or as conservator. That argument, made at some length and with considerable skill this morning by counsel for RTC, confronts in this Circuit the uncomfortable fact that our Court of Appeals ruled to the contrary just last year in Rosa versus Resolution Trust Corp., 938 F.2d 383.

 The distinction between claims made against RTC as receiver and RTC as conservator, stated in Rosa, is, of course, binding in this court. As counsel for RTC has pointed out, there is very respectable contrary authority reflected in the Court of Appeals' decision in Mustang, a decision of the Tenth Circuit. I think it was the Tenth Circuit. I mean no disrespect to the Tenth Circuit in saying that I'm not at liberty to look to it for wisdom. It is a fine circuit, as all circuits are beyond the pale of this circuit; but, by definition, not as good a circuit as our own.

 So I will continue to follow Rosa until it is divested of authority by the Supreme Court, or until such time as the Third Circuit itself reviews the problem in what would have to be an en banc proceeding.

 Suffice it to say, the issues are real ones, and the analysis deployed by the Third Circuit in Rosa is, to the extent that a trial judge is entitled to have an opinion, is indeed a respectable and comprehensible analysis as the statutory framework. But the analysis adopted by the Tenth Circuit and deployed by the RTC in argument today is certainly plausible and deserving of serious consideration of those jurisdictions that have not yet resolved the matter one way or another.

 Now, that means that for our case, not withstanding that RTC is now the receiver for New Nassau, having been appointed to that position on August 23, 1991, the counterclaims, which were addressed to RTC in its former role as conservator, are not claims which this Court following Rosa lacks jurisdiction on.

 We wind up, that is to say, with a bifurcation of these counterclaims, stripping away those counterclaims that run to RTC as receiver for Old Nassau, and maintaining jurisdiction over those that run against RTC initially as conservator and now as receiver for New Nassau.

 Now, it may be reasonably asked why, if RTC is now at last cloaked in the majesty of a receivership for New Nassau, why that doesn't cure the problem, and cure the problem from RTC's point of view and divest this Court of all jurisdiction with respect to the counterclaims.

 The answer lies again in Rosa. What the Court of Appeals in Rosa determined is that the temporal perspective that is controlling is the status of RTC at the time of the filing of the claim against RTC. That, again, is a construction of the FIRREA statute which RTC ...

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