National Credit Union Administration Board v. RBS Securities, Inc. ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL CREDIT UNION No. 13-56620
ADMINISTRATION BOARD, as
Liquidating Agent of Western D.C. No.
Corporate Federal Credit Union, 2:11-cv-05887-
Plaintiff-Appellant, GW-JEM
v.
OPINION
RBS SECURITIES, INC., FKA RBS
Greenwich Capital Markets, Inc.,
Defendant,
and
NOMURA HOME EQUITY LOAN, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted December 8, 2015
Pasadena, California
Filed August 15, 2016
2 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
Before: Dorothy W. Nelson, Stephen Reinhardt,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge D.W. Nelson
SUMMARY*
Securities
The panel vacated the district court’s judgment dismissing
as time-barred claims brought under the Securities Act of
1933.
The National Credit Union Administration Board
(NCUA), liquidating agent for a failed credit union, sued
defendants for making false and misleading statements in
their offerings of residential mortgage-backed securities
purchased by the credit union.
The “Extender Statute,” 12 U.S.C. § 1787(b)(14), part of
the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, establishes the applicable statute
of limitations with regard to any action brought by the NCUA
as conservator or liquidating agent for a failing or failed
credit union. The panel held that the Extender Statute
supplants the statute of repose contained within 15 U.S.C.
§ 77m, which provides that a private investor pursuing a
claim under § 11 or § 12(a)(2) of the Securities Act must
bring suit within three years after the security was offered or
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 3
sold. Joining other circuits, the panel held that the Extender
Statute replaces all preexisting time limitations, whether
styled as a statute of limitations or a statute of repose, in any
action by the NCUA as conservator or liquidating agent. The
panel also held that the Extender Statute’s scope includes
actions such as this one, in which the NCUA asserted
statutory claims rather than common law tort or contract
claims. The panel distinguished CTS Corp. v. Waldburger,
134 S. Ct. 2175 (2014), which addressed a preemption
provision of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980.
The panel held that the NCUA’s claims were timely filed.
It remanded the case for further proceedings consistent with
its opinion.
COUNSEL
David C. Frederick (argued), Wan J. Kim, and Gregory G.
Rapawy, Kellogg, Huber, Hansen, Todd, Evans & Figel,
PLLC, Washington, D.C.; George A. Zelcs, Korein Tillery
LLC, Chicago, Illinois; Michael J. McKenna and John K.
Ianno, National Credit Union Administration, Alexandria,
Virginia; for Plaintiff-Appellant.
Matthew S. Hellman (argued), Barbara S. Steiner and Barry
Levenstam, Jenner & Block LLP, Chicago, Illinois, for
Defendant-Appellee Nomura Home Equity Loan, Inc.
Marc T.G. Dworsky and David H. Fry, Munger, Tolles &
Olson LLP, San Francisco, California, for Defendant-
Appellee Wachovia Mortgage Loan Trust, LLC.
4 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
OPINION
D.W. NELSON, Senior Circuit Judge:
This case concerns the National Credit Union
Administration Board’s (NCUA) liquidation of Western
Corporate Federal Credit Union (Wescorp). The NCUA sued
Wachovia Mortgage Loan Trust, LLC (Wachovia) and
Nomura Home Equity Loan, Inc. (Nomura) for making false
and misleading statements in their offerings of residential
mortgage-backed securities (RMBS) purchased by Wescorp.
The NCUA brought these claims under the Securities Act of
1933 (1933 Act). The district court dismissed the NCUA’s
claims, ruling that 12 U.S.C. § 1787(b)(14) (the Extender
Statute) did not supplant the statute of repose contained
within 15 U.S.C. § 77m, and therefore that the NCUA’s
claims were time-barred. We VACATE the district court’s
judgment and REMAND the case for further proceedings
consistent with this opinion.
BACKGROUND
The NCUA is an independent federal agency responsible
for chartering and regulating federal credit unions, regulating
federally insured state-chartered credit unions, and
administering the Share Insurance Fund (the Fund). See
12 U.S.C. §§ 1752a(a), 1754, 1781, 1783–1784. The Fund
insures the deposits of nearly 100 million account holders. It
is financed through deposits by and assessments against
insured credit unions and backed by the full faith and credit
of the United States. See id. § 1782(c).
When an insured credit union is in danger of failing, the
NCUA has the authority to step in as a conservator to
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 5
preserve the credit union’s assets and to protect the Fund. See
id. §§ 1766, 1786(h). Upon finding that a credit union is
bankrupt or insolvent, the NCUA closes the credit union for
liquidation and appoints itself as liquidating agent. Id.
§ 1787.
Before its failure, Wescorp was the second largest
corporate credit union in the United States. It offered a
variety of financial services to other credit unions. Like
many financial institutions before the collapse of the housing
market, Wescorp invested in RMBS, which are securities
backed by thousands of individual residential mortgages.
And, like many such financial institutions, Wescorp failed
after suffering heavy losses on its RMBS investments.
Pursuant to its statutory authority, the NCUA placed
Wescorp into conservatorship, and later into liquidation.
After assuming control of Wescorp, the NCUA determined
that offering documents for RMBS issued by Wachovia and
Nomura and purchased by Wescorp in 2006 and 2007
contained certain statements and omissions that the NCUA
believed materially misrepresented the quality of the
residential loans underlying the RMBS. The NCUA sued
Wachovia and Nomura for violations of § 11 and § 12(a)(2)
of the 1933 Act, ch. 38, 48 Stat. 74 (codified as amended at
15 U.S.C. § 77a et seq.).1
Pursuant to § 13 of the 1933 Act, a private investor
pursuing a claim under § 11 or § 12(a)(2) ordinarily must
1
The NCUA and Wachovia entered into a settlement agreement while
the NCUA’s appeal was pending. On October 28, 2015, this Court
granted their stipulated motion to dismiss the NCUA’s claims against
Wachovia. Case No. 13-56620 Dkt. No. 75.
6 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
bring suit: (1) within one year after discovering a violation,
and (2) within three years after the security was offered or
sold. 15 U.S.C. § 77m. The Supreme Court has explained
that the second requirement is a statute of repose. See Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.
350, 363 (1991). Unlike a statute of limitations, which begins
to run when a claim accrues and may be subject to equitable
tolling, “[a] statute of repose bars any suit that is brought
after a specified time since the defended acted . . . , even if
this period ends before the plaintiff has suffered a resulting
injury.” CTS Corp. v. Waldburger, 143 S. Ct. 2175, 2182
(2014). A statute of repose is “therefore equivalent to a
cutoff, in essence an absolute bar on a defendant’s temporal
liability.” Id. at 2183 (internal citations and quotation marks
omitted).
However, in response to the Savings and Loan Crisis,
Congress enacted the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L.
101–73, 103 Stat. 183. FIRREA contains special provisions
concerning the failure of financial institutions. Among other
things, it provides that the NCUA may be appointed as a
conservator or liquidating agent for failing and failed credit
unions, and that upon such appointment, the NCUA gains the
right to pursue any claims the credit unions had. See
generally 12 U.S.C. § 1787.
Additionally, FIRREA contains the Extender Statute,
which establishes “the applicable statute of limitations with
regard to any action brought by [the NCUA] as conservator
or liquidating agent.” 12 U.S.C. § 1787(b)(14). The
Extender Statute requires that contract claims be brought
within the longer of: (1) the 6-year period beginning on the
date the claim accrues; or (2) the period applicable under
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 7
State law. Id. § 1787(b)(14)(A). It requires that tort claims
be brought within the longer of: (1) the 3-year period
beginning on the date the claim accrues; or (2) the period
applicable under State law. Id. For purposes of these
provisions, a claim accrues the later of: (1) the date of
appointment of the NCUA as conservator or liquidating
agent; or (2) the date on which a cause of action accrues. Id.
§ 1787(b)(14)(B).
The NCUA placed Wescorp into conservatorship on
March 20, 2009. It filed its original complaint less than three
years later, on July 18, 2011. Nevertheless, the district court
held the NCUA’s claims were not timely filed. Instead, the
district court interpreted the Extender Statute narrowly,
finding that it supplanted only the one-year “statute of
limitations” and not the three-year “statute of repose”
contained in § 13 of the 1933 Act. Because the NCUA did
not file suit within three years after the securities at issue
were offered or sold (as the statute of repose ordinarily
requires), the district court dismissed the NCUA’s claims
against Wachovia and Nomura as time-barred.
We disagree with the district court’s interpretation of the
Extender Statute. We hold that the Extender Statute replaces
all preexisting time limitations—whether styled as a statute
of limitations or a statute of repose—in any action by the
NCUA as conservator or liquidating agent. We also hold that
the Extender Statute’s scope—“any action brought by the
[NCUA]”—includes actions such as this one, in which the
NCUA asserts statutory claims rather than common law tort
or contract claims. In sum, we conclude that the NCUA’s
claims were timely filed.
8 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
STANDARD OF REVIEW
We review a dismissal on statute of limitations grounds
de novo. Papenthien v. Papenthien, 120 F.3d 1025, 1027 (9th
Cir. 1997).
ANALYSIS
I. The District Court Erred in Holding that the
Extender Statute Does Not Supplant the 1933 Act’s
Statute of Repose.
a. FIRREA applies to statutes of repose.
We join all appellate courts to have considered the
question of whether an extender statute like the one in
FIRREA applies to both statutes of limitations and to statutes
of repose and find that it does.2 Indeed, the Extender Statute
2
The Tenth Circuit Court of Appeals held, as we do, that the Extender
Statute supplanted § 13’s statute of repose. Nat’l Credit Union Admin. Bd.
v. Nomura Home Equity Loan, Inc., 727 F.3d 1246 (10th Cir. 2013) cert.
granted, judgment vacated, 134 S. Ct. 2818 (2014). It affirmed its holding
on remand. Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan,
Inc. (Nomura II), 764 F.3d 1199 (10th Cir. 2014) cert. denied, 135 S. Ct.
949 (2015).
The Second Circuit Court of Appeals held that 12 U.S.C.
§ 4617(b)(12), the analogous extender statute for actions by the Federal
Housing Finance Agency, displaces § 13’s statute of repose. Fed. Hous.
Fin. Agency v. UBS Americas Inc., 712 F.3d 136 (2d Cir. 2013).
The Fifth Circuit Court of Appeals and the Nevada Supreme Court
each held that 12 U.S.C. § 1821(d)(14), the analogous extender statute for
actions by the Federal Deposit Insurance Corporation supplants all other
time limits. Fed. Deposit Ins. Corp. v. RBS Sec. Inc., 798 F.3d 244 (5th
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 9
establishes a universal time limit for all actions by the NCUA
as conservator or liquidating agent. Both textual and
contextual analyses of the statute confirm this conclusion, and
the Supreme Court’s decision in CTS Corp. v. Waldburger,
134 S. Ct. 2175 (2014) does not support Appellees’
arguments to the contrary.
1. By its plain meaning, the Extender Statute
displaces all other time limitations.
The “first step in interpreting a statute is to determine
whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). In this
case, it does. And that plain and unambiguous meaning
demonstrates that the Extender Statute applies not only to the
1933 Act’s statute of limitations, but also to its statute of
repose.
The Extender Statute provides:
(A) In general
Notwithstanding any provision of any
contract, the applicable statute of limitations
with regard to any action brought by the
[NCUA] as conservator or liquidating agent
shall be–
(i) in the case of any contract claim, the
longer of–
Cir. 2015) cert. denied, 136 S. Ct. 1492 (2016); Fed. Deposit Ins. Corp.
v. Rhodes, 336 P.3d 961 (Nev. 2014).
10 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
(I) the 6-year period beginning on the
date the claim accrues; or
(II) the period applicable under State
law; and
(ii) in the case of any tort claim, the
longer of–
(I) the 3-year period beginning on the
date the claim accrues; or
(II) the period applicable under State
law.
(B) Determination of the date on which a
claim accrues
For purposes of subparagraph (A), the date on
which the statute of limitations begins to run
on any claim described in such subparagraph
shall be the later of–
(i) the date of the appointment of the
[NCUA] as conservator or liquidating
agent; or
(ii) the date on which the cause of action
accrues.
12 U.S.C. § 1787(b)(14). The Extender Statute begins by
setting forth “the applicable statute of limitations with regard
to any action brought by the [NCUA] as conservator or
liquidating agent.” Id. § 1784(b)(14)(A) (emphasis added).
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 11
It further provides that the limitations period “shall be” six
years for contract cases, three years for tort cases, or in either
case, the respective applicable period under State law if that
period is longer. Id.
By expressly stating that “the” statute of limitations for
“any action” brought by the NCUA as conservator or
liquidating agent “shall be” as specified, Congress made clear
that no other limitations period applies to the NCUA’s claims.
Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan,
Inc., 764 F.3d 1199, 1226 (10th Cir. 2014) (Nomura II); Fed.
Housing Finance Agency v. UBS Americas Inc., 712 F.3d
136, 141–42 (2d Cir. 2013). It is clear to us that the Extender
Statute’s plain meaning “indicates that it . . . supplants all
other time limits.” Nomura II, 764 F.3d at 1226; see also
Fed. Deposit Ins. Corp. v. RBS Securities Inc., 798 F.3d 244,
254 (5th Cir. 2015) (“Interpreting the statute as excluding
repose periods from its ambit would circumvent that
mandatory language by providing the FDIC with less than
three years from the date of its appointment as receiver to
bring claims.”).
2. Various tools of statutory construction
further support our determination that the
Extender Statute displaces the 1933 Act’s
statute of repose.
Numerous tools of statutory construction confirm our
conclusion. The statutory context and FIRREA’s legislative
history clearly indicate that the Extender Statute displaces the
1933 Act’s statute of repose.
First, when viewed in the context of FIRREA as a whole,
it is apparent that the Extender Statute displaces the 1933
12 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
Act’s statute of repose. Specifically, FIRREA refers to
“statute of limitations” or “statute of limitation” in six
provisions including the Extender Statute. 12 U.S.C.
§§ 1787(b)(5)(F)(i), (b)(6)(B), (b)(8)(D), (b)(8)(E), (b)(14),
(d)(4). Tellingly, three of the six uses refer to limitations
periods better characterized as statutes of repose. Those three
provisions, which set deadlines for appealing NCUA’s denial
of a claim, employ the term “statutes of limitations” but they
do not provide for tolling—the hallmark of statutes of repose.
12 U.S.C. §§ 1787(b)(6)(B) (“the claimant shall have no
further rights or remedies” after 60 days), (b)(8)(D) (“the
claimant shall have no further rights or remedies” after 30
days), (d)(4) (establishing a fixed time limit for appeal that
begins to run on the date of the decision being challenged).
This suggests that FIRREA uses the term “statutes of
limitations” broadly, to include what are technically statutes
of repose. See Nomura II, 764 F.3d at 1230–31 (explaining
that the absence of a provision for accrual or tolling in these
three sections suggests that FIRREA uses “statute of
limitations” broadly). It follows that the term should be given
the same broad meaning when it is used in other places in
FIRREA, including in the Extender Statute. And giving the
term this broad meaning makes it clear that the Extender
Statute displaces any preexisting time limitation in any action
by the NCUA as conservator or liquidating agent.
FIRREA’s legislative history also supports our
conclusion. When submitting FIRREA’s conference report
to the Senate, FIRREA’s sponsor stated that the Extender
Statute should be “construed to maximize potential recoveries
by the Federal Government by preserving to the greatest
extent permissible by law claims that would otherwise have
been lost due to the expiration of hitherto applicable
limitations period.” 135 Cong. Rec. S10205 (Daily Ed. Aug.
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 13
4, 1989) (statement of Senator Donald W. Riegle, Jr., then-
Chairman of the Committee on Banking, Housing, and Urban
Affairs and sponsor of FIRREA in the Senate). Indeed,
FIRREA’s stated purposes were to “strengthen the
enforcement powers of Federal regulators of depository
institutions,” FIRREA, Pub.L. No. 101–73, 103 Stat. 183§ 101(9), and to “strengthen the civil sanctions and criminal
penalties for defrauding or otherwise damaging depository
institutions and their depositors,” id. § 101(10). We have
recognized FIRREA reflects a “policy of protecting the
government’s right to recovery.” Fed. Deposit Ins. Corp. v.
N.H. Ins. Co., 953 F.2d 478, 486–87 (9th Cir. 1991). This
policy is best advanced by interpreting the Extender Statute
to supplant the 1933 Act’s statute of repose. Thus, we agree
with the Tenth Circuit Court of Appeals that the legislative
history clearly “demonstrates Congress meant any ambiguity
in the term ‘statute of limitations’ to be construed broadly.”
Nomura II, 764 F.3d at 1217 (noting also that “[i]t strains
common sense to think Congress would have saddled the
NCUA with having to comply with multiple federal and state
statutes of repose”).
Arguing otherwise, Appellees point to the Extender
Statute’s instruction to begin the limitations period on the
date of a claim’s “accrual” as a sign that the new limitations
period must not displace statutes of repose. This is so,
according to Appellees, because the concept of “accrual” is
irrelevant to a statute of repose, which is generally triggered
by the defendant’s act. Appellees’ argument confuses the
statute’s use of accrual. The references to accrual simply
reflect that the new timeframe for the NCUA to assert claims
begins only after a claim accrues. RBS Securities Inc.,
798 F.3d at 254; Nomura II, 764 F.3d at 1229. Those
references do not define the type of limitations period that the
14 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
Extender Statute replaces. They pertain only to the limitation
period that the Extender Statute creates. Thus, the use of this
term has no bearing on whether the Extender Statute
supplants the 1933 Act’s statute of repose.
3. The Supreme Court’s decision in CTS Corp.
v. Waldburger does not support Appellees’
arguments.
Appellees’ heavy reliance on the Supreme Court’s
decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014)
is misplaced. The statute at issue in CTS fundamentally
differs from the Extender Statute in numerous ways.
Accordingly, the Supreme Court’s analysis of that statute
does not compel a contrary conclusion to the one we reach
here.
In CTS Corp., the Supreme Court considered the effect of
42 U.S.C. § 9658, an amended provision of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), that by its terms preempted
“State statutes of limitations.” The Court concluded that the
statute preempted only statutes of limitations, not statutes of
repose.3 134 S. Ct. at 2180. In reaching this conclusion, the Court
3
CERCLA § 9658 reads in pertinent part as follows:
(a) State statutes of limitations for hazardous substance
cases
(1) Exception to State statutes
In the case of any action brought under State
law for personal injury, or property damages,
which are caused or contributed to by
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 15
exposure to any hazardous substance, or
pollutant or contaminant, released into the
environment from a facility, if the applicable
limitations period for such action (as specified
in the State statute of limitations or under
common law) provides a commencement date
which is earlier than the federally required
commencement date, such period shall
commence at the federally required
commencement date in lieu of the date
specified in such State statute.
(2) State law generally applicable
Except as provided in paragraph (1), the statute of limitations established
under State law shall apply in all actions brought under State law for
personal injury, or property damages, which are caused or contributed to
by exposure to any hazardous substance, or pollutant or contaminant,
released into the environment from a facility.
...
(b) Definitions
...
(2) Applicable limitations period
The term “applicable limitations period”
means the period specified in a statute of
limitations during which a civil action referred
to in subsection (a)(1) of this section may be
brought.
(3) Commencement date
The term “commencement date” means the date
specified in a statute of limitations as the beginning
of the applicable limitations period.
16 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
first discussed the differences between statutes of limitations
and statutes of repose, noting that a “statute of limitations
creates ‘a time limit for suing in a civil case based on the date
when the claim accrued.’” Id. at 2182 (quoting BLACK’S LAW
DICTIONARY 1546 (9th ed. 2009)). In contrast, a statute of
(4) Federally required commencement date
(A) In general
Except as provided in subparagraph (B),
the te r m “f e d e r a l l y r e q u i r e d
commencement date” means the date the
plaintiff knew (or reasonably should have
known) that the personal injury or
property damages referred to in
subsection (a)(1) of this section were
caused or contributed to by the hazardous
substance or pollutant or contaminant
concerned.
(B) Special rules
In the case of a minor or incompetent
plaintiff, the term “federally required
commencement date” means the later of
the date referred to in subparagraph (A)
or the following:
(i) In the case of a minor, the date on
which the minor reaches the age of
majority, as determined by State law,
or has a legal representative
appointed.
(ii) In the case of an incompetent
individual, the date on which such
individual becomes competent or has
had a legal representative appointed.
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 17
repose, “puts an outer limit on the right to bring a civil
action.” Id. The Court explained that a statute of limitation
therefore encourages plaintiffs to pursue their known claims
diligently whereas a statute of repose reflects a legislative
judgment that defendants should be free from any liability
after the passage of a certain amount of time. Id. at 2183.
In determining that § 9658 did not apply to statutes of
repose, the Court pointed to several things. First, it noted that
§ 9658 provides only a limited exception to state statutes of
limitations. This exception concerns only the commencement
date of the limitations period. Id. at 2185. The state statutes
continue to provide the limitations period itself. “Under this
structure,” the Court stated, “state law is not pre-empted
unless it fits into the precise terms of the exception.” Id.
Second, the Court identified a 1982 Study Group Report
recommending that in the same discovery rule later embodied
in § 9658, Congress repeal state statutes of limitations as well
as state statutes of repose. Id. at 2186. The Court reasoned
that if Congress decided not to mention statutes of repose
despite this clear indication that it considered doing so, then
Congress must have intended to omit statutes of repose from
§ 9658’s scope. Id. The Court then noted the text of the
statute “describing the covered [limitations] period in the
singular[,]” which the Court explained “would be an
awkward way to mandate the pre-emption of two different
time periods with two different purposes.” Id. at 2186–87.
FIRREA’s Extender Statute is “fundamentally different”
from § 9658. Nomura II, 764 F.3d at 1208.4 Whereas the
4
We note that in light of its holding in CTS Corp., the Supreme Court
vacated the Tenth Circuit’s original holding that the NCUA’s extender
18 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
Extender Statute sets entirely new time limits for claims
brought by the NCUA, § 9658 establishes only a new
commencement date for the limitations period set by state
law. CTS Corp., 134 S. Ct. at 2185. Thus, while § 9658 is
properly characterized as a limited exception to the otherwise
applicable state law, the Extender Statute provides the
exclusive limitations framework for any action by the NCUA
as conservator or liquidating agent, leaving no room for any
state limitations period that might otherwise apply.
Moreover, unlike in CTS, there is no evidence in this case
that Congress considered separately addressing statutes of
repose, and then declined to do so. In contrast to the
enactment of § 9658, where the existence of the 1982 Study
Group Report reflected that Congress intentionally limited the
scope of preemption to state statutes of limitations, there is
“no evidence Congress distinguished between statutes of
limitations and statutes of repose” when it enacted FIRREA.
Nomura II, 764 F.3d at 1215. Absent such evidence, the
“limitations period,” viewed in isolation, provides little
insight into Congress’s intent. Indeed, it is well understood
that “the term ‘statutes of limitations’ is sometimes used in a
less formal way . . . [to] refer to any provision restricting the
time in which a plaintiff must bring suit,” and that “Congress
has used the term ‘statute of limitations’ when enacting
statutes of repose.” CTS Corp., 134 S. Ct. at 2185 (citing
statute displaced the 1933 Act’s statute of repose. Nomura Home Equity
Loan, Inc. v. Nat'l Credit Union Admin. Bd., 134 S. Ct. 2818 (2014).
On remand, the Tenth Circuit reaffirmed its conclusion, finding little
difficulty distinguishing § 9658 from the NCUA’s extender statute.
Nomura II, 764 F.3d at 1208. The Supreme Court denied certiorari when
the case returned from the Tenth Circuit. Nomura Home Equity Loan, Inc.
v. Nat'l Credit Union Admin. Bd., 135 S. Ct. 949 (2015).
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 19
15 U.S.C. § 78u-6(h)(1)(B)(iii)(I)(aa) (2012 ed.) (placing a
statute of repose in a section entitled “Statute of
limitations”)).
Finally, unlike § 9658, the Extender Statute uses the
singular word “period” not to refer to the state law
timeframe(s) being replaced, but rather to refer to the new
timeframe being established. That new exclusive timeframe
adopts “the period applicable under State law” only when that
period is longer than the period otherwise prescribed. Thus,
the Extender Statute’s use of the word “period” by no means
operates to exclude statutes of repose from its scope.
In sum, we reject Appellees’ arguments that the Supreme
Court’s holding in CTS Corp. requires a contrary conclusion
to the one we reach here. We hold that in actions by the
NCUA as conservator or liquidating agent, the Extender
Statute displaces all preexisting time limitations, including
the 1933 Act’s statute of repose.
b. The Extender Statute applies to statutory
claims.
We now turn to whether the Extender Statute applies to
statutory claims, and not merely to common law claims. We
conclude that it does.
“The preeminent canon of statutory interpretation requires
us to ‘presume that [the] legislature says in a statute what it
means and means in a statute what it says there.’” BedRoc
Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (quoting
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54
(1992)). As our Court has long held, “[i]f the statutory
language is unambiguous and the statutory scheme is
20 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
coherent and consistent, judicial inquiry must cease.”
Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2011)
(internal quotation marks omitted).
The text of the Extender Statute is unambiguous. The
Extender Statute applies to “any action brought by the
[NCUA]” as conservator or liquidating agent, regardless of
whether the action is state or federal, or whether the NCUA
asserts statutory or common law claims. Because the
Extender Statute applies to “any action,” it is improper to
read its description of the six-year limitations of contract
claims and three-year limitations of tort claims as limiting its
scope to only common law contract and tort claims. Instead,
the natural reading of the Extender Statute is that it also
applies to statutory claims.
Indeed, this natural reading of the Statute’s text was
adopted by the Second Circuit Court of Appeals in holding
that a materially similar statute in the Housing and Economic
Recovery Act was applicable to actions in which the Federal
Housing Finance Agency (FHFA) asserted both state and
federal claims. Federal Housing Finance Agency v. UBS
Americas Inc., 712 F.3d 136 (2d Cir. 2013). The Second
Circuit found that “[b]y explicitly stating that ‘the’ statute of
limitations for ‘any action’ brought by FHFA as conservator
‘shall be’ as specified in § 4617(b)(12), Congress clearly
provided that the extender statute [applied].” Id. at 141–42.
(emphasis in original).
Because the statute is unambiguous, our inquiry need not
go any further. Miranda, 684 F.3d at 849. But if there were
any remaining doubt, the legislative history confirms our
reading. FIRREA was enacted to “significantly increase the
amount of money that can be recovered by the Federal
NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 21
Government through litigation, and help ensure the
accountability of the persons responsible for the massive
losses the Government has suffered through the failures of
insured institutions.” 135 Cong. Rec. S10205 (daily ed. Aug.
4, 1989) (statement of Senator Riegle)). Indeed, the Supreme
Court has noted that “[a]s a result [of the financial crisis of
the 1980s], Congress enacted . . . [FIRREA] . . . with the
objects of preventing the collapse of the industry, attacking
the root causes of the crisis, and restoring public confidence.”
United States v. Winstar Corp., 518 U.S. 839, 856 (1996).
We find that FIRREA’s legislative history and purpose
clearly reflect that Congress intended the Extender Statute to
apply to statutory claims. See Nomura II, 764 F.3d at
1238–39 (concluding that restricting the Statute to common
law claims, “would flatly contradict FIRREA’s explicit
purpose”).5
We find unconvincing Appellees’ argument that allowing
the Extender Statute to supply the applicable statute of
limitations would result in a repeal of a portion of the 1933
Act. When enacting FIRREA, Congress carved out a specific
set of rules that applies only to agencies like the NCUA when
5
Though the Tenth Circuit found that the Extender Statute’s text was
ambiguous as to whether it was limited to common law claims, it
ultimately held that the Statute did apply to statutory claims in part
because of FIRREA’s legislative purpose. Nomura II, 764 F.3d at
1236–42.
Additionally, it found that an analysis of 28 U.S.C.A. § 2415, the
default federal statute of limitations that Congress used as a model when
drafting the Extender Statute, also demonstrated that Congress intended
for FIRREA to apply to statutory claims. Id. at 1239. The Tenth Circuit
held, and we agree, that because § 2415 had been used by courts to apply
to statutory claims, this is further evidence that the Statute should not be
limited. Id. at 1239, 1241.
22 NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN
they pursue claims on behalf of failing or failed financial
institutions. Thus, applying the Extender Statute results in a
narrow exception to the 1933 Act for federal agencies in a
limited capacity, and not for any other litigants who file suit.
There is no implicit repeal.
Given the plain text of the Extender Statute and the
legislative history of FIRREA, we hold that the Extender
Statute applies to statutory claims, including those brought
pursuant the 1933 Act that the NCUA asserts in this action.
CONCLUSION
The district court erred in holding that FIRREA’s
Extender Statute does not displace the 1933 Act’s statute of
repose in actions by the NCUA as conservator or liquidating
agent. We therefore VACATE the district court’s judgment
and REMAND the case for further proceedings consistent
with this opinion.