Slattery v. Roth , 710 F.3d 1336 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
FRANK P. SLATTERY, JR., AND LFC NO. 1 CORP,
on behalf of themselves and
on behalf of all other similarly situated sharehold-
ers of Meritor Savings Bank,
Plaintiffs-Appellees,
v.
STEVEN ROTH AND INTERSTATE PROPERTIES,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee,
v.
JOHN R. MCCARRON,
Movant-Appellant.
______________________
2012-5041, -5068
______________________
Appeal from the United States Court of Federal
Claims in 93-CV-280, Senior Judge Loren A. Smith.
______________________
Decided: March 21, 2013
______________________
THOMAS M. BUCHANAN, Winston & Strawn, LLP, of
Washington, DC, argued for plaintiffs-appellees.
2 SLATTERY v. US
RICHARD J. UROWSKY, Sullivan & Cromwell, LLP, of
New York, New York, argued for plaintiffs-appellants.
With him on the brief was BRADLEY P. SMITH.
BRIAN A. MIZOGUCHI, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were JOYCE R.
BRANDA, Acting Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and SCOTT D. AUSTIN,
Assistant Director. Of counsel on the brief were JACOB A.
SCHUNK and AMANDA L. TANTUM, Trial Attorneys.
JEFFREY B. MCCARRON, Swartz Campbell LLC, of
Philadelphia, Pennsylvania, argued for movant-appellant.
With him on the brief was CANDIDUS K. DOUGHERTY.
______________________
Before PROST, BRYSON ∗, and WALLACH, Circuit Judges.
PROST, Circuit Judge.
This is the second time this court has entertained ap-
peals in this long-running litigation relating to the failure
of Meritor Savings Bank (“Meritor”). Meritor failed in
1992 after the Federal Deposit Insurance Corporation
(“FDIC”) breached a capital agreement with Meritor. We
previously affirmed a decision of the United States Court
of Federal Claims finding that the government was liable
for the FDIC’s breach of contract, and awarding $276
million in “lost value” damages. Slattery v. United States,
583 F.3d 800, 815-18 (Fed. Cir. 2009) (“Slattery I”), vacat-
ed and reh’g en banc granted, 369 F. App’x 142 (Fed. Cir.
Circuit Judge Bryson assumed senior status on
∗
January 7, 2013.
SLATTERY v. US 3
2010), reinstated as modified on reh’g en banc, 635 F.3d
1298 (Fed. Cir. 2011) (en banc). On remand, the Court of
Federal Claims dealt with two distinct questions raised by
two distinct parties. First, applying 12 U.S.C.
§ 1821(d)(11)—the statute governing the distribution of a
receivership surplus by the FDIC acting in its capacity as
a receiver (“FDIC-R”)—the court held that current Meri-
tor shareholders are the proper recipients of the $276
million award. Slattery v. United States, 102 Fed. Cl. 27,
29-30 (2011) (“Slattery II”); see also Slattery v. United
States, No. 93-CV-280 (Fed. Cl. Dec. 15, 2011) (Final
Order) (“Slattery III”). Second, the court denied a motion
to intervene filed by John R. McCarron, a former Meritor
employee, on the grounds of lack of subject matter juris-
diction and issue and claim preclusion. Slattery II, 102
Fed. Cl. at 30-31.
Intervenors Steven Roth and Interstate Properties
(collectively “Roth”)—former shareholders who owned
shares of Meritor at the time of its failure but later sold
their shares—appeal from an order of the Court of Feder-
al Claims directing the FDIC-R to distribute the receiver-
ship surplus to current shareholders. Mr. McCarron
appeals the Court of Federal Claims’ denial of his motion
to intervene. The primary issues raised on appeal are
whether the Court of Federal Claims properly:
(1) construed 12 U.S.C. § 1821(d)(11) as requiring distri-
bution of the receivership surplus to current shareholders,
instead of to former shareholders like Roth; and (2) denied
Mr. McCarron’s motion to intervene. For the reasons that
follow, we affirm.
BACKGROUND
A. MERITOR’S FAILURE
In 1982, the FDIC sought to save a failing Pennsylva-
nia bank, the Western Savings Society of Philadelphia
(“Western”), through merger with a solvent bank. Meri-
4 SLATTERY v. US
tor 1 and the FDIC agreed that Meritor would merge with
Western. 2 To facilitate the merger, the FDIC agreed that
Meritor could treat as “goodwill” the difference between
the assets and liabilities Meritor assumed from Western
and that Meritor could use this goodwill as a capital asset
for purposes of meeting the FDIC’s capital requirements
for banks. In 1988, the FDIC breached this capital-
related agreement by no longer recognizing the goodwill
resulting from the Western acquisition as capital on
Meritor’s books. As a result, Meritor no longer satisfied
the FDIC’s capital requirements. Meritor later failed and,
on December 11, 1992, the Pennsylvania Secretary of
Banking took possession of Meritor and appointed the
FDIC as receiver.
At the time of Meritor’s failure and seizure in Decem-
ber 1992, Roth owned more than 1.7 million shares of
Meritor stock. In September 1993, however, Roth sold his
shares for $0.03 per share, receiving a total of approxi-
mately $51,000.
B. ROTH’S CLAIM
In 1993, Frank Slattery, an owner of Meritor stock,
filed suit in the Court of Federal Claims, asserting a
shareholder derivative action on behalf of Meritor for
breach of contract by the FDIC, as well as a class action
on behalf of Meritor’s shareholders at the time Meritor
was put into receivership. In 1996, Mr. Slattery—citing
the fact that a market for Meritor stock had developed
and some shareholders had sold their stock—amended the
1 Until 1986, Meritor was named the Philadelphia
Savings Fund Society. For simplicity, the name “Meritor”
is used throughout.
2 Additional background facts and procedural history
are detailed in our prior opinion in Slattery I. See, e.g.,
Slattery I, 583 F.3d at 804-07, 812-13, 816, 825-27.
SLATTERY v. US 5
complaint to redefine the putative class as consisting of
shareholders of Meritor as of the date of judgment in the
case, not at the time of seizure.
In light of Mr. Slattery’s amendment to the complaint,
Roth sought leave to intervene in the proceedings, which
the Court of Federal Claims granted. Roth alleged that as
a Meritor shareholder at the time it went into receiver-
ship, he was entitled to a portion of any receivership
surplus under 12 U.S.C. § 1821. He asserted claims
against the FDIC-R based on its failure to distribute to
Roth his portion of the receivership surplus. However,
the court postponed consideration of Roth’s claims until
after a final determination of Mr. Slattery’s claims.
The Court of Federal Claims ultimately dismissed Mr.
Slattery’s class action but allowed him to pursue his
shareholder derivative action for breach of contract. Mr.
Slattery prevailed on the derivative claim, and the Court
of Federal Claims awarded approximately $372 million in
damages. As for Roth, the Court of Federal Claims dis-
missed his complaint, ruling that it lacked jurisdiction to
hear his claims because the FDIC, in its capacity as
receiver, is not “the United States” and therefore cannot
be sued under the Tucker Act.
On appeal, this court affirmed the Court of Federal
Claims’ finding that the government was liable for the
FDIC’s breach of contract. Slattery I, 583 F.3d at 815-16.
We also affirmed, in part, the damages award, allowing
$276 million in “lost value” damages based on Meritor’s
market valuation immediately before the FDIC’s breach,
on the theory that the breach initiated a chain of events
leading to the bank’s seizure and the loss of all sharehold-
er value. Id. at 817-18. With respect to Roth, we reversed
the Court of Federal Claims’ dismissal of his claims on
jurisdictional grounds, although “[w]e express[ed] no
opinion on the merits of [his] claims.” Id. at 829. We
remanded the case to the Court of Federal Claims for
6 SLATTERY v. US
further proceedings, including consideration of Roth’s
claims relating to the receivership surplus. Id.On remand, Mr. Slattery moved for a partial final
judgment against the government for the $276 million
damages award affirmed on appeal, and for an order
directing the FDIC-R to distribute the award to Meritor’s
current shareholders immediately, while reserving a
portion pending the outcome of Roth’s claims. Roth filed a
cross-motion, requesting that the Court of Federal Claims
order the FDIC-R to distribute the $276 million award to
former shareholders like him who owned shares of Meri-
tor at the time of its seizure in December 1992. The
government opposed Roth’s motion, contending that 12
U.S.C. § 1821(d)(11) requires that any receivership sur-
plus be distributed to current Meritor shareholders.
On November 18, 2011, the Court of Federal Claims
held that Meritor’s current shareholders are the proper
recipients of Meritor’s receivership surplus, and that
former shareholders who sold their shares relinquished
their right to claim any benefit from the litigation. Slat-
tery II, 102 Fed. Cl. at 29-30. Accordingly, on December 1,
2011, the court dismissed Roth’s Second Amended Com-
plaint. Slattery v. United States, No. 93-CV-280 (Fed. Cl.
Dec. 1, 2011) (order dismissing Roth’s Second Amended
Complaint). Then, in a Final Order dated December 15,
2011, the Court of Federal Claims ordered the govern-
ment to pay $276 million to the FDIC-R. Slattery III, slip
op. at 1. In addition, it ordered the FDIC-R to use the
$276 million to pay certain litigation costs and attorneys’
fees, and then to distribute the remaining money to
Meritor’s current shareholders, except for $7,626,387.60,
which was to be set aside in an escrow account and paid
to Roth in the event he succeeded in this appeal. Id. at 1-
SLATTERY v. US 7
3. 3 The court entered final judgment on December 28,
2011.
C. MCCARRON’S CLAIM
John McCarron was a Meritor employee at the time
the bank went into receivership in 1992. Mr. McCarron
claims entitlement to share in this litigation’s proceeds
based on a “Severance Compensation Agreement” and an
“employment agreement” he had with Meritor. Mr.
McCarron alleges that under his Severance Compensation
Agreement, he is owed two times his annual compensa-
tion, equal to $676,410. He also alleges that his employ-
ment agreement granted him options to purchase 100,000
shares of Meritor stock for one dollar per share. Thus,
Mr. McCarron claims he is entitled to 100,000 times the
difference between the amount of any per share distribu-
tion to shareholders and one dollar.
Mr. McCarron previously litigated against the FDIC-
R in the Eastern District of Pennsylvania and the Third
Circuit in the early- to mid-1990s. See McCarron, 111
F.3d 1089 (3d Cir. 1997). Among other things, Mr.
McCarron claimed entitlement to “twice his annual sala-
ry” under his “Severance Compensation Agreement.” Id.
at 1092. The Third Circuit permitted Mr. McCarron’s suit
to proceed for vested pension benefits under an unrelated
retirement plan. See id. at 1098. However, relevant to
the present litigation, the Third Circuit affirmed the
district court’s dismissal of Mr. McCarron’s claim based
on his Severance Compensation Agreement, concluding
that after Meritor was placed into receivership, “McCar-
3 The Court of Federal Claims’ order provides that if
Roth is denied recovery, the funds in escrow will be dis-
tributed to the “Depository Trust Corporation” for pro
rata distribution to current Meritor shareholders who own
their shares through the Depository Trust Corporation.
Id. at 3.
8 SLATTERY v. US
ron’s Severance Compensation Agreement was properly
repudiated” by the FDIC-R. Id. at 1095.
In September 1996, while Mr. McCarron’s appeal was
pending before the Third Circuit, he filed a motion to
intervene in this litigation. In 2006, Mr. McCarron filed a
supplemental memorandum in support of his motion to
intervene, and the Court of Federal Claims denied his
motion. Mr. McCarron never appealed that decision.
In September 2011, after this court ruled on the prior
appeal and remanded the case to the Court of Federal
Claims, Mr. McCarron filed a second motion to intervene.
Mr. McCarron attached a complaint in which he asserted
a claim to a share of this litigation’s proceeds based on his
Severance Compensation Agreement and employment
agreement, as discussed above.
The Court of Federal Claims denied Mr. McCarron’s
second motion to intervene in its November 18, 2011
Order and Opinion. See Slattery II, 102 Fed. Cl. at 30-31.
The court held that the motion should be denied for at
least three independent reasons. First, the court deter-
mined that “McCarron’s claim is directed against Meritor
and the Receiver rather than the Government,” and
therefore the court lacked jurisdiction under the Tucker
Act to hear Mr. McCarron’s claim. Id. at 31. Second, the
court determined that Mr. McCarron’s claim was barred
by res judicata or claim preclusion because “McCarron
previously asserted the same claim in district court,”
resulting in a final judgment affirmed by the Third Cir-
cuit. Id. (citing McCarron, 111 F.3d at 1092). Third, and
finally, the court determined that Mr. McCarron’s motion
was barred by issue preclusion because, by failing to
appeal the court’s denial of his first motion to intervene,
“McCarron did not preserve the issue and cannot raise it
again now.” Id.SLATTERY v. US 9
D. APPEAL
Roth appealed the Court of Federal Claims’ November
18, 2011 Opinion and Order, December 1, 2011 Order,
and December 15, 2011 Final Order. Mr. McCarron
appealed the Court of Federal Claims’ November 18, 2011
Opinion and Order and December 28, 2011 Judgment.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
A. ROTH’S APPEAL
Roth raises three principal issues on appeal. First
and foremost, Roth argues that the Court of Federal
Claims incorrectly construed 12 U.S.C. § 1821(d)(11) as
requiring distribution of a receivership surplus to current
Meritor shareholders, instead of to shareholders at the
time Meritor went into receivership. Second, Roth ap-
peals the Court of Federal Claims’ dismissal of his Second
Amended Complaint. Third and finally, Roth contends
that the Court of Federal Claims exceeded its jurisdiction
in entering an order purporting to limit the government’s
liability for claims by potential future plaintiffs who were
not parties to this litigation. We address each issue in
turn.
1
The FDIC-R’s distribution of a receivership surplus is
governed by 12 U.S.C. § 1821(d)(11). The version of the
statute that was in effect at the time the FDIC was ap-
pointed as receiver for Meritor, and which is controlling in
this case, provided:
In any case in which funds remain after all depos-
itors, creditors, other claimants, and administra-
tive expenses are paid, the receiver shall
distribute such funds to the depository institution’s
shareholders or members together with the ac-
counting report required under paragraph (15)(B).
10 SLATTERY v. US
12 U.S.C. § 1821(d)(11)(B) (emphasis added). 4
The primary issue raised in Roth’s appeal is the
meaning of “shareholders” in § 1821(d)(11), and whether
the word refers to Meritor shareholders at the time of the
final judgment in this litigation (i.e., “current sharehold-
ers”) or to shareholders at the time Meritor was seized
and placed into receivership. Roth owned 1.7 million
shares of Meritor at the time of Meritor’s seizure in De-
cember 1992, but he sold those shares in September 1993.
The meaning of “shareholders” therefore dictates whether
Roth is entitled to receive a portion of the $276 million
receivership surplus. The Court of Federal Claims held
that § 1821(d)(11) refers to current shareholders, and thus
that current shareholders—not former shareholders like
Roth—are the proper recipients of the receivership sur-
plus. Slattery II, 102 Fed. Cl. at 29-31. We review ques-
tions of statutory interpretation such as this de novo.
Mudge v. United States, 308 F.3d 1220, 1224 (Fed. Cir.
2002).
As an initial matter, we note that the Court of Federal
Claims erroneously applied the current version of
§ 1821(d)(11). See Slattery II, 102 Fed. Cl. at 29. The
current version of the statute was enacted on August 10,
1993, and applies only “with respect to insured depository
institutions for which a receiver is appointed after the
date of the enactment.” Omnibus Budget Reconciliation
4The version of the statute in effect at the time the
FDIC was appointed as receiver for Meritor was enacted
on August 9, 1989 as part of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989. Pub. L.
101-73, 103 Stat. 183 (1989); see also Federal Deposit
Insurance Corporation Improvement Act of 1991, Pub. L.
102-242, § 161(a)(2), 105 Stat. 2236 (1991) (amending
§ 1821(d)(11)(B) by striking the original reference to
paragraph “(14)(C)” and inserting “(15)(B)”).
SLATTERY v. US 11
Act of 1993, Pub. L. 103-66, § 3001(c), 107 Stat. 312 (1993)
(emphasis added). Because the FDIC was appointed as
Meritor’s receiver in December 1992, the pre-1993 version
of the statute controls, and it was error for the Court of
Federal Claims to apply the current version of the statute.
Nevertheless, we do not find this to be reversible error
because, as discussed below, we reach the same conclu-
sion as the Court of Federal Claims based on our de novo
review of the pre-1993 version of the statute. 5
Roth argues that the plain meaning of § 1821 ex-
presses the clear intent of Congress to give the sharehold-
ers of Meritor at the time of seizure the right to receive
proportionate shares of any receivership surplus. Roth
points to another provision of § 1821(d), which provides
that when the FDIC is appointed as a receiver for a seized
depository institution, it succeeds to “all rights, titles,
powers, and privileges of the insured depository institu-
tion, and of any stockholder, member, accountholder,
depositor, officer, or director of such institution with
respect to the institution and the assets of the institu-
tion.” 12 U.S.C. § 1821(d)(2)(A)(i) (emphasis added).
According to Roth, this means the rights of Meritor’s
shareholders were “fixed” as of December 11, 1992—the
date Meritor went into receivership—and that subsequent
trading of shares in Meritor’s corporate shell could not
confer upon purchasers any rights relating to matters
regulated by statute, such as distribution of a receivership
surplus. Roth further notes that § 1821(d)(11) requires
the FDIC-R to distribute any receivership surplus “to the
depository institution’s shareholders.” Roth asserts that
5 We note that the version of § 1821(d)(11) we are
tasked with construing was in effect only from August 9,
1989 to August 10, 1993. Because the version of the
statute enacted in 1993 does not govern this case, we
express no opinion on whether the Court of Federal
Claims properly construed the statute.
12 SLATTERY v. US
Meritor ceased to operate as a “depository institution”
when it went into receivership. 6 Thus, according to Roth,
he was a shareholder of Meritor up through the final
moment that it functioned as a “depository institution,”
and he therefore falls within the group of shareholders
who should benefit from the receivership surplus. Simi-
larly, Roth argues that those who purchased shares of
Meritor after it went into receivership were never share-
holders of a “depository institution,” and thus they have
no claim under § 1821(d)(11). In addition, Roth argues
that the Court of Federal Claims’ interpretation “would
divorce the infliction of harm from the entitlement to
recovery and lead to a bizarre outcome in which the
shareholders of Meritor who were injured by the Govern-
ment receive no compensation, while post-seizure specula-
tors who were never injured are compensated.” Roth’s
Appeal Br. 21.
The government responds that the plain text of the
statute requires distribution of any receivership surplus
to current Meritor shareholders. The government invokes
the temporal aspect of § 1821(d)(11), noting that the
statute provides that “after” the FDIC-R pays all other
claims and expenses, it shall distribute any remaining
surplus to the depository institution’s shareholders.
Thus, according to the government, Congress clearly was
referring to those who hold shares at the time of the
distribution, and not to those like Roth who are no longer
shareholders. The government also contends that Roth’s
other arguments are completely unsupported by the text
6 Roth equates “depository institution” with an insti-
tution “engaged in the business of receiving deposits,”
citing 12 U.S.C. § 1813(a)(2)(A). However, § 1813(a)(2)
sets forth the definition of the term “State bank,” not
“depository institution.” The term “depository institution”
is defined elsewhere in § 1813 as simply “any bank or
savings association.” 12 U.S.C. § 1813(c)(1).
SLATTERY v. US 13
of § 1821(d). For example, in response to Roth’s argument
that Meritor ceased to operate as a “depository institu-
tion” when it went into receivership, the government
argues that all outstanding shares of Meritor are shares
in a depository institution because they were issued by
Meritor—a depository institution—and that nothing in
the statute dictates that a depository institution’s shares
cease to be shares in a depository institution if the insti-
tution enters receivership and stops accepting deposits.
As for Roth’s argument that § 1821(d)(2)(A)(i) “fixed” the
rights of shareholders at the time of the receivership’s
creation, the government argues that this section permits
the receiver to control and resolve the failed bank, but
says nothing about the distribution of any surplus to the
institution’s shareholders, which is governed instead by
§ 1821(d)(11).
We agree with the government that under
§ 1821(d)(11), current Meritor shareholders are the proper
recipients of the receivership surplus. The statute directs
the FDIC to distribute a receivership surplus to a “deposi-
tory institution’s shareholders,” without any further
qualifications. Because the existence and amount of any
surplus is determined following the payment of claims
and administrative expenses remaining at the time of the
distribution, it is logical to interpret the parallel reference
to “the depository institution’s shareholders” to mean
those who are shareholders at the time of the distribution
as well. If Congress had intended to require distributions
to former shareholders, it easily could have included
language to that effect.
We are not persuaded by Roth’s other arguments.
Roth contends that § 1821(d)(2) “fixed” the rights of
shareholders at the time Meritor went into receivership.
However, § 1821(d)(2), which is titled “[g]eneral powers,”
grants the FDIC-R the “rights, titles, powers, and privi-
leges” of shareholders, depositors, and others “with re-
spect to the institution and the assets of the institution”
14 SLATTERY v. US
so that it can operate the bank and perhaps use the
bank’s assets to form a new bank. It does not strip away
the private property of those listed in the statute. For
example, it does not deprive depositors of their deposits,
nor does it strip shareholders of their shares. Cf. Pareto
v. FDIC, 139 F.3d 969, 700-01 (9th Cir. 1998) (finding
that the grant of shareholder rights under subsection
(d)(11) is not subsumed by, or coextensive with, rights
transferred pursuant to subsection (d)(2)(A)(i)).
Roth also reads too much into § 1821(d)(11)’s refer-
ence to a “depository institution’s shareholders.” Roth
seems to think Meritor’s shares ceased to be shares in a
depository institution the moment Meritor went into
receivership and stopped accepting deposits. We think it
more likely that Congress used the term “depository
institution”—which it defined as “any bank or savings
association,” 12 U.S.C. § 1813(c)(1)—throughout the
statute simply for the sake of convenience and clarity. If,
instead of “depository institution’s shareholders,” Con-
gress had used the phrase “bank’s shareholders,” we
doubt there would be any question that post-receivership
purchasers of shares would qualify as shareholders for
purposes of § 1821(d)(11). Therefore, we reject Roth’s
contentions that he could not transfer his right to a re-
ceivership surplus, and that people who purchased shares
after Meritor went into receivership are not shareholders
in a “depository institution” for purposes of § 1821(d)(11).
Nor are we persuaded by Roth’s argument that the
government’s interpretation leads to a “bizarre outcome”
that divorces the infliction of harm by the government
from the entitlement to recovery. Roth easily could have
avoided this “bizarre outcome” if he had simply held onto
his shares. In addition, when Roth sold his shares, the
$51,000 he received in exchange presumably represented
the fair market value of those shares as of September
1993, including the possibility (perhaps viewed as remote
at the time) that this lawsuit would result in a large
SLATTERY v. US 15
damages award to be distributed to shareholders. Roth’s
decision to sell his shares turns out to have been a costly
one, but one that is inherent in decisions about buying
and selling shares of stock.
We have considered Roth’s remaining arguments re-
garding § 1821(d)(11) and find them unpersuasive. Ac-
cordingly, we affirm the Court of Federal Claims’ holding
that current Meritor shareholders are the proper recipi-
ents of the receivership surplus.
2
After the Court of Federal Claims determined that
current shareholders are the proper recipients of the
receivership surplus under § 1821(d)(11), it dismissed
Roth’s Second Amended Complaint. See Slattery v. Unit-
ed States, No. 93-CV-280 (Fed. Cl. Dec. 1, 2011) (order
dismissing Roth’s Second Amended Complaint). Roth’s
complaint set forth his “claims-in-intervention,” which
sought to enforce his purported right to a pro rata share of
the receivership surplus “both under 12 U.S.C.
§ 1821(d)(11) and the takings clause of the Fifth Amend-
ment.” Roth’s Appeal Br. 27. The basis for Roth’s takings
claim is the alleged “failure by the FDIC to distribute a
surplus to its proper recipients” under § 1821(d)(11). Id.
(citing Slattery I, 583 F.3d at 826-29, and First Hartford
Corp. Pension Plan & Trust v. United States, 194 F.3d
1279, 1283 (Fed. Cir. 1999)).
Roth appeals the dismissal of his claims-in-
intervention. However, as previously discussed, Roth has
no rights to the receivership surplus under § 1821(d)(11),
so his claim under § 1821(d)(11) must fail. Likewise,
because Roth is not a “proper recipient” under
§ 1821(d)(11), he has no “property interest” that could
provide a basis for a takings claim. Accordingly, we
affirm the Court of Federal Claims’ dismissal of Roth’s
Second Amended Complaint.
16 SLATTERY v. US
3
Finally, Roth challenges the following limitation of li-
ability in the Court of Federal Claims’ December 15, 2011
Final Order:
6. Because the United States and FDIC in its
corporate capacity shall not, under any circum-
stance, be liable in excess of the $276 million
awarded under this Final Order, upon payment of
the $276 million to the Receiver for further distri-
bution as set forth in this Order, the United
States and FDIC in its corporate capacity shall be
and are hereby discharged and released from any
liability to Plaintiffs arising from or relating to
this action, and from any further obligation or lia-
bility arising from or relating to: (1) the breach of
contract found by this Court: (2) the Meritor re-
ceivership; (3) payment of the judgment by De-
fendant to the Receiver prior to final adjudication
of any appeal by the Intervenors, or (4) any distri-
bution by the Receiver, including but not limited
to the general procedures outlined and approved
in this Order.
Slattery III, slip op. at 4. On appeal, Roth asserts that
this limitation of liability improperly purports to adjudi-
cate potential claims of other shareholders who are not
parties to the litigation. Roth therefore contends that by
entering this limitation of liability, the Court of Federal
Claims exceeded its jurisdictional authority.
The government responds that Roth lacks standing to
challenge the limitation of liability because his challenge
raises purported rights of other former shareholders. The
government also contends that Roth’s argument is moot
because more than ninety-five percent of the $276 million
judgment has already been distributed to current Meritor
shareholders, so this court could not effectively provide
relief to other potential claimants. In addition to the
SLATTERY v. US 17
government’s arguments, Mr. Slattery argues that the
jurisdictional issue is not yet ripe.
It is undisputed that Roth will not be affected by the
Court of Federal Claims’ limitation of liability. By inter-
vening in this lawsuit, he has had an opportunity to
litigate his claims. And his potential interests were fully
protected by the order requiring the FDIC-R to set aside
more than $7.6 million in an escrow account to be paid in
the event he were to prevail on appeal. Thus, we see no
reason to reverse or vacate the Final Order, which it
appears is the relief Roth seeks.
Nevertheless, we are somewhat concerned by the
breadth of the Final Order’s limitation of liability, and the
possibility that it could be interpreted as having preclu-
sive effect on potential future claimants who were not
parties to this litigation. We note, therefore, that in the
perhaps unlikely event that non-parties bring future
claims relating to the subject matter of this lawsuit,
traditional principles of claim and issue preclusion should
apply. Of course, any claims that have not already been
brought during the twenty-year pendency of this lawsuit
may be untimely or barred on other grounds.
B. MCCARRON’S APPEAL
As previously discussed, Mr. McCarron filed a motion
to intervene in this lawsuit in 1996, which the Court of
Federal Claims denied in 2006. Mr. McCarron never
appealed the denial of that motion. In 2011, after the
case had been returned to the Court of Federal Claims on
remand from this court, Mr. McCarron filed a second
motion to intervene. The Court of Federal Claims denied
the second motion on three separate grounds, finding
that: (1) the court lacked jurisdiction under the Tucker
Act to hear Mr. McCarron’s claim because it is directed
against Meritor and the FDIC in its capacity as receiver,
rather than against the United States; (2) Mr. McCarron’s
claim was barred by res judicata as a result of his prior
18 SLATTERY v. US
litigation against the FDIC in the Eastern District of
Pennsylvania and the Third Circuit; and (3) Mr. McCar-
ron’s second motion to intervene was barred by issue
preclusion because he failed to appeal the denial of his
first motion. Slattery II, 102 Fed. Cl. at 30-31.
Mr. McCarron appeals the Court of Federal Claims’
denial of his second motion to intervene, challenging all
three of the court’s reasons for denying the motion. We
need only address the issue of res judicata to affirm.
Under the doctrine of res judicata or claim preclusion,
“[a] final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that
were or could have been raised in that action.” Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Res
judicata precludes a party from bringing a claim in a
second lawsuit where “(1) the parties are identical or in
privity; (2) the first suit proceeded to a final judgment on
the merits; and (3) the second claim is based on the same
set of transactional facts as the first.” Ammex, Inc. v.
United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003).
Mr. McCarron argues that his prior litigation against
the FDIC in the Eastern District of Pennsylvania and the
Third Circuit does not have preclusive effect because the
receivership has since been found to be improper:
McCarron was denied relief [in his prior liti-
gation] because the employment contract was re-
pudiated through operation of the receivership.
[McCarron, 111 F.3d at] 1095. The receivership
has since been adjudicated as improper and dam-
ages assessed against the Government. Slattery
v. United States, 53 Fed. Cl. 258 (Fed. Cl. 2002);
Slattery v. United States, 583 F.3d 800, 825 (Fed.
Cir. 2010). Since the receivership was improper,
the repudiation of McCarron’s employment con-
tract was also improper, and McCarron is there-
fore entitled to payment as a creditor of Meritor.
SLATTERY v. US 19
McCarron’s Appeal Br. 26 (emphasis added).
Mr. McCarron’s argument fails because it rests on the
flawed premise that Meritor’s receivership has been
adjudicated as improper. It is true that the FDIC has
been found liable for breaching its capital agreement with
Meritor, and that the FDIC’s breach led to Meritor being
put into receivership. See Slattery I, 583 F.3d at 815-16,
825. It is not true, however, that the receivership itself
has been adjudicated as improper. Mr. McCarron cites no
support for the proposition that the FDIC’s breach of
contract renders invalid all of the subsequent actions of
the FDIC, acting in its capacity as Meritor’s receiver.
There is no reason to conclude that the FDIC-R’s repudia-
tion of Mr. McCarron’s employment contract was improp-
er. Accordingly, we affirm the Court of Federal Claims’
denial of Mr. McCarron’s motion to intervene.
CONCLUSION
In view of the foregoing, the judgment of the Court of
Federal Claims is affirmed.
AFFIRMED