MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff MBIA Insurance Corporation ("MBIA") has filed an amended complaint against the Federal Deposit Insurance Corporation ("FDIC") asserting claims arising from the failure of IndyMac Bank, F.S.B. ("IndyMac Bank" or "IndyMac") and its subsequent resolution by the FDIC. Defendant FDIC, in its capacity as receiver for IndyMac Federal Bank, F.S.B. ("FDIC Receiver"),1 has moved to dismiss the amended complaint filed by MBIA [Dkt. # 26]. In addition, defendant FDIC, in its corporate capacity ("FDIC Corporate"), has separately moved to dismiss the count against it in the amended complaint [Dkt. # 25].

MBIA is one of the parties that played a critical role in IndyMac's securitization and sale of mortgage loans, and that incurred significant losses for which it has not been reimbursed by the now insolvent bank. In other words, MBIA is one of the bank's many unhappy creditors. It provided insurance policies protecting the investors in several transactions in which IndyMac securitized mortgage loans in 2006 and 2007. MBIA seeks to be indemnified for the losses it incurred when borrowers defaulted and the investors whose securities dropped in value made claims under the insurance policies. But the receivership has no assets to pay the bank's general creditors.

In this action, MBIA attempts to cast its claims as administrative expenses of the receivership and thereby gain priority over other creditors pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), Pub.L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of 12 U.S.C.). But the law does not support MBIA's approach, and the receivership otherwise lacks the means to satisfy MBIA's breach of contract claims. Therefore, and for the reasons set forth in more detail below, the Court will grant the motions to dismiss.

BACKGROUND

IndyMac was in the business of offering loans to home owners and home buyers as well as acquiring mortgages that had been originated by other entities. Am. Compl. ¶ 23. IndyMac's practice was to sell those mortgage loans through securitization transactions. Id. ¶ 31.

Between December 2006 and March 2007, IndyMac was involved in the three particular securitization transactions at issue in this case (the "Transactions").2 Id. ¶¶ 32-35. In connection with each of the Transactions, MBIA and IndyMac entered into Insurance and Indemnity Agreements pursuant to which MBIA issued insurance policies (the "Policies") for the Transactions. Id. ¶ 36. The agreements are (1) an Insurance and Indemnity Agreement dated December 21, 2006 (the "2006-H4 Insurance Agreement"), (2) an Insurance and Indemnity Agreement dated February 14, 2007 (the "2007-1 Insurance Agreement"), and (3) an Insurance and Indemnity Agreement dated March 22, 2007 (the "2007-2 Insurance Agreement") (collectively, the "Insurance Agreements"). Id. Each Insurance Agreement incorporated by reference the representations and warranties made by the bank in the other "Transaction Documents." Id. ¶ 40. For the 2006-H4 Transaction, the Transaction Documents included a Master Loan Purchase Agreement ("Purchase Agreement") and a Sale and Servicing Agreement; for the 2007-1 and 2007-2 Transactions, the Transaction Documents included, among other documents, Pooling and Servicing Agreements (the Purchase Agreement, the Sale and Servicing Agreement, and the Pooling and Servicing Agreements are collectively referred to by plaintiff—and hereinafter by the Court—as the "PSAs"). Id. The PSAs set out IndyMac's obligations in its roles as seller and servicer of the loans.

The Policies issued by MBIA guaranteed that investors in the Transactions would receive the cash flows IndyMac had promised them even if significant defaults and other losses occurred on the mortgage loans underlying the Transactions. Id. ¶¶ 3, 38. IndyMac and MBIA each agreed to certain affirmative covenants in the Insurance Agreements, and IndyMac agreed to service the mortgage loans in compliance with the PSAs by collecting mortgage payments, determining whether a mortgage loan was in default, maximizing borrowers' compliance with their obligations on the loans, and remitting proceeds from the mortgage loans to the trusts for the IndyMac Transactions. Id. ¶¶ 54-56; see also Pl.'s Opp. to Mot. to Dismiss [Dkt. # 11], Ex. 1 ("2006-H4 Insurance and Indemnity Agreement"), § 2.04.3 As part of the Insurance Agreements, IndyMac also made representations and warranties to MBIA with respect to the quality of the mortgage loans. Am. Compl. ¶¶ 39-41; see also 2006-H4 Insurance and Indemnity Agreement § 2.01.

MBIA's claims are based on the Transaction Documents that embodied the three securitization Transactions, and an understanding of the chronology of the FDIC's involvement with IndyMac is critical to the resolution of those claims.

THE AMENDED COMPLAINT

Counts I-V of the amended complaint allege that MBIA incurred losses when IndyMac Federal, and FDIC in its capacity as conservator of IndyMac Federal, failed to perform servicing and other duties that IndyMac had been obliged to perform under the terms of the Transaction Documents. Am. Compl. ¶¶ 89-181. Specifically:

MBIA does not allege that IndyMac Federal was bound by the Transaction Documents simply by virtue of its status as IndyMac's successor. A breach of contract under those circumstances would give rise only to an ordinary claim for damages. Rather, for the breach of contract claims in Counts I through V, MBIA specifically asserts that the FDIC "approved" the agreements in question after its appointment as conservator or receiver under 12 U.S.C. § 1821(d)(20). Thus, according to plaintiff:

Am. Compl. ¶¶ 107, 129, 150, 168, 180. MBIA's first five damage claims are predicated solely on this theory.

Count VIII, the other damages claim, is somewhat different. It purports to seek the "actual, direct, compensatory damages" available under 12 U.S.C. § 1821(e)(3) for FDIC Receiver's March 19, 2009 repudiation of the INDS 2007-1 PSA. MBIA alleges that as a result of the repudiation, it suffered damages flowing from IndyMac Federal's and the FDIC's breaches of the PSA that should be calculated as of the date of the appointment of the receiver on July 11, 2008.

The complaint also contains equitable claims. In Count VI, MBIA seeks injunctive relief against FDIC Corporate, FDIC Receiver, and FDIC Conservator under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq. It asks the Court to order the FDIC to reverse its denial of MBIA's claims for the reasons set forth in the damages claims: that its losses are an administrative expense of the receivership. The count also seeks a declaration that the distribution of assets received from OneWest in connection with the sale of IndyMac Federal was unlawful and an order directing FDIC Corporate to return any assets it received so that MBIA can be paid. Am. Compl. at 55. Count VII challenges FDIC Receiver's repudiation of the PSA for the ENDS 2007-1 Transaction on the grounds that it did not occur within a "reasonable period." Am. Compl. ¶¶ 194-202.

In sum, MBIA's claims boil down to a single theory: that FDIC, as conservator for IndyMac Federal, specifically assumed the PSAs for the Transactions when it executed the P & A Agreement assuming assets and liabilities of the failed bank; that the alleged assumption of those contracts under the P & A Agreement on behalf of IndyMac Federal constituted the conservator's "execution or approval" of the PSAs for purposes of 12 U.S.C. § 1821(d)(20); and that, therefore, damages flowing from the conservator's alleged breaches of the PSAs—in particular the failure to participate in the loan breach remedy or "put-back process"—are administrative expenses of the receivership entitled to priority payment under section 1821(d)(11).

FDIC Receiver contends that the complaint is a transparent effort by the insurer to repackage its unrecoverable claims against IndyMac Bank—for losses incurred due to the bank's allegedly risky and reckless pre-receivership loan practices—into claims against the receiver itself. FDIC Receiver insists that MBIA's effort to re-characterize its claims must fail because even if IndyMac Federal and FDIC Conservator assumed the bank's obligations under the PSAs (which is by no means clear), that assumption did not constitute "approval" of the contracts by the FDIC under section 1821(d)(20) of the statute, and MBIA is therefore not entitled to priority over other creditors.

FDIC Receiver moved to dismiss MBIA's claims for monetary damages (Counts I-V and VIII) under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and it moved to dismiss MBIA's claims for injunctive and declaratory relief (Counts VI-VII) under Rule 12(b)(6) for failure to state a claim. FDIC Corporate separately moved to dismiss MBIA's sole claim against it (Count VI) under Rule 12(b)(6) for failure to state a claim.

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff `the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (internal citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

Under Rule 12(b)(1), plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement, [...] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a jurisdictional challenge, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint...." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).

Meanwhile, "[t]o survive a [Rule 12(b)(6)] motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In ruling upon a motion to dismiss under Rule 12(b)(6), a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002). Here, the amended complaint specifically references the Insurance Agreements, the PSAs, and the P & A Agreement, which is also attached to the amended complaint as Exhibit D. See, e.g., Am. Compl. ¶¶ 36-38, 40-41, 48-50, Ex. D.

ANALYSIS

I. MBIA's Damages Claims Must be Dismissed

Congress enacted FIRREA in 1989 in response to the crisis in the nation's banking and savings and loan industries. See Sharpe v. FDIC, 126 F.3d 1147, 1154 (9th Cir.1997). It allows the FDIC "to act as receiver or conservator of a failed institution for the protection of depositors and creditors," and it establishes a scheme for dealing with claims against the failed institution. Id. (internal quotations and citations omitted). Protection of depositors was the foremost goal to be accomplished by the legislation. See Wells Fargo Bank, N.A. v. FDIC, 367 F.3d 953, 954 (D.C.Cir. 2004) (noting how FIRREA was "designed to protect depositors").

The statute sets forth the priority in which claims are paid: "administrative expenses of the receiver" must be fully satisfied before outstanding deposit liabilities, which must be satisfied before general liabilities. 12 U.S.C. § 1821(d)(11)(A).10 MBIA has grounded its complaint on its contention that its "claims are administrative expenses of FDIC Conservator that, in accordance with 12 U.S.C. § 1821, must be treated as administrative expenses of FDIC Receiver and paid on a priority basis ahead of general unsecured creditor claims." Pl.'s Opp. to FDIC Receiver Mot. to Dismiss ("Pl.'s Opp. to Rec") at 18. FDIC Receiver counters that MBIA's claims do not constitute "administrative expenses" of the receivership that are entitled to priority payment. If MBIA's claims are not entitled to administrative priority, then the No Value Determination forecloses MBIA's ability to recover any damages. Thus, this motion—and plaintiff's entire damages case—turns upon whether MBIA has properly categorized the damage claims in its amended complaint as administrative expenses of the receiver under FIRREA.11

As explained in more detail below, the Court finds that the facts alleged in the amended complaint do not support MBIA's legal conclusion that its claims are entitled to administrative priority. While the Court accepts as true the allegation that the insurer was forced to make substantial payments under the Policies as a result of IndyMac's loan practices, there is nothing about those circumstances that somehow transforms those losses into expenses of the receivership instituted to wind up the bank's affairs. MBIA's argument that the FDIC "approved" the Transaction agreements simply because the FDIC—in its capacity as the conservator of IndyMac Federal—did not repudiate them is not consistent with the language or the intent of the statute. MBIA's argument also ignores the distinct roles that were played by the FDIC during different time periods. Consequently, the No Value Determination precludes MBIA from recovering on these claims in any meaningful way. The Court will therefore dismiss Counts I-V and VIII on prudential mootness grounds.

A. MBIA's Claims Are Not Administrative Expenses

FIRREA requires that the "administrative expenses of the receiver" must be fully satisfied before liabilities for deposits and general unsecured creditors can be paid. 12 U.S.C. § 1821(d)(11)(A). In enacting this section, Congress observed that administrative expenses of the receiver are a narrowly drawn category limited to "ordinary and necessary expenses of the failed institution ..., but only those that the receiver determines are necessary to maintain services and facilities to effect an orderly resolution of the institution." H.R.Rep. No. 103-213 (1993) (Conf. Rep.), reprinted in 1993 U.S.C.C.A.N. 1088, at 1125 (hereinafter "Conf. Report"). The FDIC regulations implement this understanding:

12 C.F.R. § 360.4 (2011). Examples of these expenses may include "the payment of the institution's last payroll, guard services, data processing services, utilities and expenses related to leased facilities." FDIC Receivership Rules, 60 Fed.Reg. 35,487-01, 35,487-01 (July 10, 1995) (to be codified at 12 CFR pt. 360). On the other hand, administrative expenses generally "do not include expenses such as severance pay claims, golden parachute claims and claims arising from contract repudiations." Id. While a bank and its successors may be contractually obligated to indemnify an insurance company for claims paid to investors in failed mortgages, such payments are not necessary to the receiver's liquidation or resolution of the insolvent institution, and they can hardly be likened to a utility bill. So while MBIA may be a legitimate IndyMac creditor, its claims do not fall within the scope of administrative expenses that take priority over those of other general creditors.12

1. MBIA's claims do not arise out of the breach of an agreement "approved by" the receiver, so they are not administrative expenses under 12 U.S.C. § 1821(d)(20).

MBIA points to 12 U.S.C. § 1821(d)(20) as support for its claim that it is entitled to payment for administrative expenses. That subsection provides, in pertinent part:

12 U.S.C. § 1821(d)(20) (2011) (emphasis added).

The contracts in question were not executed by the FDIC: they were entered into by the now insolvent IndyMac Bank. Moreover, the complaint does not allege that the FDIC expressly approved the Transaction Documents at any point after its appointment as IndyMac Federal's conservator or that it did so in its current capacity as the receiver. In the absence of such affirmative action, MBIA asks the Court to deem the contracts to be tacitly approved because they were not repudiated. The Court declines to do so. Plaintiff's concept of approval by omission does not comport with the plain language of the statutory provision and to interpret the clause in this manner would broaden administrative priority well beyond anything Congress appears to have intended.

To establish FDIC Conservator's alleged approval of the breached contracts under this subsection, MBIA states that FDIC Conservator entered the P & A Agreement on July 11, 2008 in its capacity as conservator of the newly created IndyMac Federal. Am. Compl. ¶ 48. Pursuant to that agreement, IndyMac Federal, the "Assuming Bank" for which FDIC was conservator, expressly assumed certain liabilities from IndyMac, including (1) "liabilities, if any, with respect to Qualified Financial Contracts" and (2) "duties and obligations under any contract to which [IndyMac] provides mortgage servicing for others." Id. ¶¶ 48-51; P & A Agreement § 2.1(j)-(k). It also acquired as assets "qualified financial contracts" and "mortgage servicing rights and related contracts." P & A Agreement § 3.1(u). The amended complaint alleges that the PSAs and Insurance Agreements were covered by the P & A Agreement, Am. Compl. ¶¶ 49-51,13 and that IndyMac Federal therefore assumed and succeeded to those agreements. Am. Compl. ¶¶ 52, 112.14

The P & A Agreement permitted the Assuming Bank, IndyMac Federal, to put certain assets or liabilities back to the FDIC in its capacity as the original receiver for IndyMac Bank. This was done for the PSA for one of the three Transactions at issue, but not the others. MBIA argues that since IndyMac Federal and FDIC Conservator failed to reject the other Transaction agreements, and FDIC Conservator failed to exercise its statutory right to repudiate the agreements under 12 U.S.C. § 1821(e)(1),15 FDIC Conservator "approved" those agreements as that term is used in 12 U.S.C. § 1821(d)(20). Am. Compl. ¶¶ 4, 51, 60. In other words, MBIA construes IndyMac Federal's assumption under the P & A Agreement of IndyMac's pre-existing obligations as the conservator's "approval" of those obligations under subsection 1821(d)(20).

MBIA cites no authority for this sweeping interpretation of FIRREA. In the Court's view, reading section 1821(d) to transform all general creditor claims based upon unrepudiated obligations of the failed bank into administrative expenses of the receiver would be contrary to both the language and intent of the statute.

The Court is bound to look first at the language of the statute. It is a well-recognized canon of statutory interpretation that where Congress has expressed its will in "reasonably plain terms, `that language must ordinarily be regarded as conclusive.'" Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). In this instance, Congress used affirmative language to identify the steps that a conservator or receiver must take with respect to a contract before a judgment for damages for its breach can be considered to be an administrative expense: it must be a contract that the conservator or receiver has executed or "approved." But there is no suggestion in this case that the FDIC took any steps to formally sanction the Transaction agreements in general, or the PSAs or Insurance Agreements in particular. See Black's Law Dictionary 118 (9th ed. 2009) (defining "approve" as to "give formal sanction to; to confirm authoritatively"); Oxford English Dictionary, OED Online (last visited Oct. 5, 2011) (defining "approve" as to "confirm authoritatively; to sanction").

Furthermore, Congress chose the words "executed or approved" for section 1821(d)(2) and did not go on to include contracts "assumed" or "not repudiated." It could easily have done so, because it utilized the word "assume" in multiple other sections of the statute, and it talked about repudiation in the very next section: 1821(e). See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (internal citations omitted); see also N. Singer & J. Singer, 2A Sutherland Statutes and Statutory Construction 228-29 (7th ed. 2007) ("[W]here the legislature has employed a term in one place and excluded it in another, it should not be implied where excluded."). Indeed, section 1821(d)(20) is titled "Treatment of claims arising from breach of contracts executed by the receiver or conservator," while section 1821(e) is called "Provisions relating to contracts entered into before appointment of conservator or receiver," 12 U.S.C. § 1821(e) (emphasis added). Reading these subsections in pari materia, it appears that Congress meant something more specific by the word "approved" than simply non-repudiation. See Motion Picture Ass'n of Am., Inc. v. FCC, 309 F.3d 796, 801 (D.C.Cir. 2002) ("Statutory provisions in pari materia normally are construed together to discern their meaning ... [and] individual sections of a single statute should be construed together.") (internal quotations and citations omitted).

MBIA's theory also ignores the particular function performed by the conservator under the statute. A conservator is empowered "to take such action as may be [ ] necessary to put the insured depository institution in a sound and solvent condition [] and appropriate to carry on the business of the institution and preserve and conserve the assets and property of the institution." 12 U.S.C. § 1821(d)(2)(D). "The conservator's mission is to conserve assets which often involves continuing an ongoing business. The receiver's mission is to shut a business down and sell off its assets." Resolution Trust Corp. v. United Trust Fund, Inc., 57 F.3d 1025, 1033 (11th Cir.1995). As a result, "[a] receiver and conservator consider different interests when making the strategic decision whether or not to repudiate a [contract]." Id.; see also Resolution Trust Corp. v. Cheshire Mgmt. Co., 18 F.3d 330, 336 (6th Cir.1994) ("[W]hen the [FDIC] handles an institution as a conservator, it continues to operate the bank as a going concern and hence pays obligations under contract when due and in cash. This is in contrast to its receivership role which is aimed at liquidating the institution."). Adopting MBIA's theory would require the conservator to repudiate the many liabilities it takes on in a purchase and assumption agreement immediately, or risk that they automatically convert to administrative expenses. This would put the conservator "in the untenable position of trying to operate the business as an ongoing concern with one hand, while at the same time calculating the ... repudiation issue as if it were shutting the business down." Resolution Trust Corp. v. CedarMinn Bldg. Ltd., 956 F.2d 1446, 1454 (8th Cir.1992).

More important, treating claims as administrative expenses based simply on the conservator's inaction would be contrary to the clear system of priorities set out in the statute. See 12 U.S.C. § 1821(d)(11)(A). MBIA concedes its contracts cannot be differentiated from the many others that were assumed, so adopting its theory would turn the preference provision on its head. In particular, it would elevate all of the bank's contractors and general creditors ahead of its depositors, a result that is inconsistent with the purpose of the clear depositor preference provision that was added to the statute in 1993. See Conference Report, 1993 U.S.C.C.A.N., at 1125 (describing how the National Depositor Preference Amendment of 1993, Pub.L. 103-66, § 3001(a), 107 Stat. 312, 336-37, which amended the statutory distribution scheme of section 1821(d)(11)(A), was designed to "increase the amount of the distribution to depositors of failed institutions" by ensuring that deposit liabilities take precedence over general creditor claims).16 See also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) ("In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."); U.S. Nat. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (noting that courts "must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy"); Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 771 (D.C.Cir.2009) ("[T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme."), quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989); N. Singer & J. Singer, 2A Sutherland Statutes and Statutory Construction 189-90 (7th ed. 2007). Given these considerations, the Court concludes that the wholesale assumption of a bank's ongoing contracts at the outset of a conservatorship cannot suffice to transform all of those contracts into the narrow category of conservatorship expenses given priority when the bank is liquidated.

The mere fact that the conservator and receiver are entitled to repudiate a contract under section 1821(e) does not mean that the failure to do so converts the liabilities for a breach of that contract into an administrative expense. Repudiation permits the conservator or receiver to reject pre-existing contracts and entitles the counterparties to those contracts to seek specific relief. See 12 U.S.C. § 1821(e)(1), (e)(3); Battista v. FDIC, 195 F.3d 1113, 1116-19 (9th Cir.1999) (noting that "[r]epudiation gives rise to an ordinary contract claim for damages" and finding that such damages are not entitled to the same priority as administrative claims). FIRREA limits most claims for repudiated contracts to "actual direct compensatory damages" relating back to the date of appointment of the conservator or receiver. 12 U.S.C. § 1821(e)(3). For non-repudiated contracts, by contrast, the relief sought by a counterparty alleging a breach would not be so limited but would still be subject to the FIRREA distribution scheme.17 Therefore, when a contract is not repudiated while the bank is in receivership, the counterparty would only be entitled to administrative priority if the contract at issue had been "executed or approved" under section 1821(d)(20).18

2. Any partial performance of the Transaction Agreements after formation of IndyMac Federal did not constitute "approval" of the contracts under § 1821(d)(20).

MBIA alleges that IndyMac Federal and FDIC Conservator partially performed IndyMac Federal's contractual obligations, and that they accepted fees for the servicing of mortgage loans during the period of the conservatorship between July 2008 and March 2009. Am. Compl. ¶ 62. MBIA argues that this fact further demonstrates the conservator's "approval" of the Transaction contracts. Pl.'s Opp. to Rec. at 3, 20-22. The Court disagrees for the reasons already set forth concerning the plain language of the statute. Congress could have said that a claim for damages for the breach of any contract approved, executed, or performed by the conservator qualifies as an administrative expense, but it did not do so.

In sum, MBIA fails to allege that FDIC Conservator—or FDIC Receiver—executed or approved the agreements at issue pursuant to section 1821(d)(20). Therefore, despite MBIA's conclusory statements to the contrary, the Court finds that MBIA has not alleged facts sufficient to demonstrate that its claims qualify as administrative expenses under subsection 1821(d)(20).19

3. MBIA's claims are not entitled to administrative priority under 12 U.S.C. § 1821(e)(7).

MBIA also points to 12 U.S.C. § 1821(e)(7) as support that its claims are entitled to administrative priority. That section applies to "contracts for services between any person and any depository institution" for which FDIC is conservator or receiver. 12 U.S.C. § 1821(e)(7)(A). It "function[s] to guarantee payment under existing service contracts to those individuals who perform services for a failed, and liquidating, institution." McAllister v. Resolution Trust Corp., 201 F.3d 570, 579 (5th Cir.2000). If, after its appointment, "the conservator or receiver accepts performance by the other person" of services under a contract, payment for those services shall be treated as an administrative expense. 12 U.S.C. § 1821(e)(7)(B). MBIA argues that this demonstrates Congress's intent that counterparties to contracts with the FDIC shall be protected from non-payment. Pl.'s Opp. to Rec. at 24-25.

But MBIA's attempt to fit the Insurance Agreements and PSAs into this provision is unavailing. Even if one were to conclude that the Insurance Agreements or PSAs are each a "contract for services," the complaint does not allege that FDIC Conservator accepted performance of services under a contract with MBIA. What it alleges is that IndyMac Federal and FDIC Conservator agreed to provide services themselves. See Am. Compl. ¶¶ 52-67. "[A] receiver is obliged to pay for services as administrative expenses ... only where the receiver has actually accepted performance of services subsequent to appointment, but prior to the repudiation of any existing service contracts." McAllister, 201 F.3d at 579. In the absence of any factual allegations to support a claim that IndyMac Federal or FDIC Conservator accepted performance of services under a service contract, the complaint does not state a plausible claim under 12 U.S.C. § 1821(e)(7).

4. MBIA's repudiation claims in Count VIII are not administrative expenses of FDIC Conservator.

In Count VIII, MBIA alleges that it is entitled to actual direct compensatory damages arising out of the repudiation of the 2007-1 Transaction. It claims that "these claims relate to breaches of a Qualified Financial Contract purportedly repudiated after such contract was transferred to IndyMac Federal ... on July 11, 2008." Am. Compl. ¶ 209. But damages arising from repudiation are generally not entitled to administrative priority, and MBIA provides no authority for the proposition that they should be. See 60 Fed.Reg. 35,487-01; Battista, 195 F.3d at 1119 ("[C]laims for damages arising from contract repudiation under § 1821(e) ... are not entitled to the same priority as administrative claims."). Thus, even if MBIA is correct that the repudiated contract was a qualified financial contract, that would govern the date as of which the damages are to be calculated under section 1821(e)(3), but it would not alter the place those claims must take in line—as general unsecured creditors. Thus, the Court finds that claims arising from MBIA's repudiation of the 2007-1 Transaction—regardless of whether the contract at issue is a QFC— are not entitled to administrative priority.20

In conclusion, for the reasons stated above, the Court finds that MBIA's claims for monetary damages (Counts I-V, VIII) do not plead facts sufficient to demonstrate they are entitled to priority as administrative expenses of FDIC Conservator or FDIC Receiver.21

B. Prudential Mootness Favors Dismissal

Having established that MBIA's claims do not qualify as administrative expenses, the Court now considers whether those claims must be dismissed as moot.

Federal courts lack subject matter jurisdiction to hear claims that are moot. United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C.Cir.2009). The D.C. Circuit recognizes two varieties of mootness: Article III mootness and prudential mootness. Under Article III of the United States Constitution, federal courts only have jurisdiction to adjudicate actual "cases" or "controversies." U.S. Const. art. III, § 2, cl. 1. Prudential mootness, "[t]he cousin of the mootness doctrine, in its strict Article III sense, is a melange of doctrines relating to the court's discretion in matters of remedy and judicial administration." Chamber of Commerce v. U.S. Dep't of Energy, 627 F.2d 289, 291 (D.C.Cir.1980).

Assuming the truth of the facts alleged in the amended complaint, MBIA could plausibly be entitled to damages for breach of the non-repudiated contracts by the conservator and damages stemming from the repudiated contract under section 1821(e)(3). Even though the No Value Determination means that MBIA cannot recover monetary damages, it can be paid with a receiver's certificate in the amount of their recovery. See Battista, 195 F.3d at 1116 ("There is no question that the FDIC may pay creditors with receiver's certificates instead of with cash."). Thus, there remains a technical case or controversy and Article III mootness does not apply.

However, prudential mootness is appropriate where "a controversy, not actually moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Chamber of Commerce, 627 F.2d at 291; see also Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C.Cir.1991) ("Where it is so unlikely that the court's grant of [remedy] will actually relieve the injury, the doctrine of prudential mootness—a facet of equity—comes into play."). The D.C. Circuit has stated that the primary test is whether a favorable judgment "will provide a real measure of redress." Foretich v. United States, 351 F.3d 1198, 1216 (D.C.Cir.2003).

Here, there is no real measure of redress available to MBIA even if it prevails on its claims. The No Value Determination forecloses that possibility for general unsecured creditors—the class to which MBIA properly belongs. See 12 U.S.C. § 1821(i)(2) (setting the maximum liability of FDIC in any capacity as the amount equal to the amount the claimant would have received if it liquidated the bank's assets and liabilities); Henrichs v. Valley View Dev., 474 F.3d 609, 615 (9th Cir. 2007) (dismissing claims against FDIC as receiver where no assets remained in receivership to satisfy the plaintiff's claims, rendering the claims moot); FDIC v. Kooyomjian, 220 F.3d 10, 15 (1st Cir.2000) (holding that claims against the FDIC as receiver failed to satisfy the case or controversy requirement where "[t]he FDIC's worthlessness determination ... preclude[d] any relief for [claimants] even i[f] they were successful ... and obtained favorable judgment"); 281-300 Joint Venture v. Onion, 938 F.2d 35, 38 (5th Cir. 1991) (dismissing "on prudential grounds" where "there will never be any assets with which to satisfy a judgment"); Boone v. IndyMac Bank, F.S.B., No. CV 09-10750 SJO (CWx), 2010 WL 7405439, at *3 (C.D.Cal. Dec. 14, 2010) ("Because any legal relief available to Plaintiff would be a general unsecured claim, the Worthlessness Determination prevents this Court from effectively remedying Plaintiff's legal claims as no funds are available to pay such claims."). It follows that litigation would produce nothing for plaintiff beyond a certificate worth no more than the paper on which it is printed. Thus, considerations of prudence, judicial efficiency and comity weigh against issuing a decision that would be largely advisory.

Therefore, the Court will dismiss MBIA's claims for monetary damages (Counts I-V, VIII) as prudentially moot.22

II. Declaratory and Injunctive Relief are Unavailable

MBIA also seeks declaratory and injunctive relief in Counts VI and VII. Count VI alleges that FDIC improperly disallowed its claims based on the No Value Determination. MBIA seeks an injunction against FDIC Corporate, FDIC Receiver, and FDIC Conservator under the APA, requiring FDIC Conservator or FDIC Receiver to properly determine its administrative claims in compliance with FIRREA. Am. Compl. at 54. In Count VII, MBIA alleges that it received notice eight months after the P & A Agreement that FDIC Conservator re-transferred the PSA for the 2007-1 Transaction to Original FDIC Receiver, and that Original FDIC Receiver repudiated the PSA. Id. ¶ 198. MBIA seeks a declaration under 28 U.S.C. § 2201 that FDIC failed to repudiate the 2007-1 Transaction PSA in a "reasonable period" pursuant to 12 U.S.C. § 1821(e)(2).23 Id.

FDIC Receiver argues that 12 U.S.C. § 1821(j) bars the Court from granting the declaratory or injunctive relief that MBIA seeks in Counts VI and VII. The Court agrees.

Section 1821(j) prevents courts from "tak[ing] any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver." 12 U.S.C. § 1821(j). The D.C. Circuit and other circuits have held that section 1821(j) precludes granting declaratory and injunctive relief where such relief would interfere with the receiver's management of the estate. See Freeman v. FDIC, 56 F.3d 1394, 1399 (D.C.Cir.1995) ("Section 1821(j) does indeed effect a sweeping ouster of the court's power to grant equitable remedies [against FDIC Receiver]."); Nat'l Trust for Historic Pres. in the U.S. v. FDIC, 995 F.2d 238, 240-41 (D.C.Cir.1993) (holding that section 1821(j) bars suit for injunctive relief where the FDIC acts in accordance with the powers granted to it by Congress), aff'd on reh'g, 21 F.3d 469 (1994); Courtney v. Halleran, 485 F.3d 942, 946 (7th Cir.2007) ("[S]ection 1821(j) squarely precludes granting declaratory, injunctive, or other equitable relief where such relief would interfere with the receiver's management of the estate...."); Boone, 2010 WL 7405439, at *4 ("12 U.S.C. § 1821(j) prohibits judicial interference with the FDIC's performance of its statutory duties and has been widely held to prohibit courts from granting equitable remedies against the FDIC as Receiver.").

Section 1821(j) does not, however, bar injunctive or declaratory relief "when the FDIC has acted or proposes to act beyond, or contrary to, its statutorily prescribed, constitutionally permitted, powers or functions." Nat'l Trust for Historic Pres., 995 F.2d at 240. In an attempt to circumvent the general statutory bar, MBIA relies on this exception and claims that the FDIC exceeded its statutory authority. Am. Compl. ¶ 192. With respect to Count VI, MBIA alleges that "IndyMac Federal, under FDIC's receivership, retained the $1.5 billion paid by OneWest for IndyMac Federal's assets, and has since liquidated other assets, the proceeds from which it is holding in reserve to satisfy administrative expense claims, like MBIA's." Id. ¶ 188. Thus, MBIA alleges that "FDIC's refusal to review MBIA's administrative expense claims constitutes an action by the FDIC outside its statutory authority since the FDIC has refused to even review, much less pay, valid administrative claims...." Id. Alternatively, MBIA alleges that FDIC Conservator "exceeded its statutory authority afforded to it under FIRREA, and transferred or otherwise dissipated the proceeds form [sic] the OneWest sale, and IndyMac Federal's other assets without regard for MBIA's administrative expense claims." Id. ¶ 189. Thus, at bottom, the only "illegality" alleged in Count VI is FDIC's failure to consider MBIA's claims as an administrative expense.

With respect to Count VII, MBIA argues FDIC exceeded its statutory authority by repudiating the 2007-11 Transaction PSA "outside the time provided by FIRREA." Id. ¶ 202. But MBIA's allegations all fall well within the FDIC's powers or functions under FIRREA to dispose of the IndyMac assets and process administrative claims. See, e.g., 12 U.S.C. § 1821(d)(2)(3); see also Nat'l Trust for Historic Pres., 995 F.2d at 240 ("In disposing of the assets of a bank, the FDIC is performing a routine `receivership' function that § 1821(j) unequivocally removes from judicial restraint."); Ward v. Resolution Trust Corp., 996 F.2d 99, 103 (5th Cir.1993) ("When the [FDIC] determines the method, terms and conditions of the disposition of assets, it is indisputably exercising its discretion and judgment in administering the affairs of a failed or troubled financial institution through liquidation of receivership assets.").

In seeking injunctive or declaratory relief, it is not enough for MBIA to allege that FDIC came to the wrong conclusion in processing its claims, or that repudiation on a different schedule would have been preferable. The FDIC's exercise of its "powers may not be restrained by any court, regardless of the claimant's likelihood of success on the merits of his underlying claims." Freeman, 56 F.3d at 1398-99. In essence, MBIA "fails (or refuses) to recognize the difference between the exercise of a function or power that is clearly outside the statutory authority of the [FDIC] on the one hand, and improperly or even unlawfully exercising a function or power that is clearly authorized by statute on the other." Ward, 996 F.2d at 103. Only the former type of act could possibly subject FDIC to an injunction. Id.

With respect to Count VI, FDIC Receiver was well within its statutory authority in disposing of the receivership assets and deciding MBIA's administrative claims. FDIC Receiver declined to process MBIA's claims any further in light of its conclusion that MBIA's claims were not entitled to administrative priority and because of the No Value Determination. This was perfectly appropriate and so injunctive relief is not an available remedy. See 12 U.S.C. § 1821(d)(5)(D)(i) ("The receiver may disallow any portion of any claim by a creditor or claim of security, preference, or priority which is not proved to the satisfaction of the receiver."); Halleran, 485 F.3d at 946 (rejecting plaintiff's argument that "a private party is entitled to an injunction against the FDIC when the agency fails properly to implement the distribution priorities of § 1821(d)(11), notwithstanding the anti-injunction provision of FIRREA"). Moreover, even if plaintiff was entitled to seek declaratory relief, the Court has already ruled that it is MBIA, and not the FDIC, that is misinterpreting the statute on the administrative expense issue.

Similarly, with respect to Count VII, FDIC Conservator and FDIC Receiver undoubtedly have the right to wield the "powerful tool" of repudiation under FIRREA. CedarMinn Bldg. Ltd., 956 F.2d at 1451; see also Bank of N.Y. v. FDIC, 453 F.Supp.2d 82, 92 (D.D.C.2006) (describing how the power to repudiate is among the FDIC's "broad powers to resolve the affairs of a failed depository institution"). FDIC was acting within its statutory authority under section 1821(e) in repudiating the 2007-1 Transaction PSA. Gross v. Bell Sav. Bank, 974 F.2d 403, 408 (3d Cir.1992) (holding that section 1821(j) cannot be overcome so long as the receiver "is colorably acting within [his] enumerated powers"). Thus, plaintiff is limited to its claim for damages. Because the Court finds that the FDIC was acting within its enumerated power, neither injunctive nor declaratory relief is available.

Therefore, the Court will dismiss Counts VI and VII for failure to state a claim upon which relief can be granted because the relief is barred by section 1821(j).

III. The Claim Against FDIC Corporate Must be Dismissed

A. Section 1821(d)(10)(B) bars the relief MBIA seeks

In Count VI, plaintiff seeks an injunction against FDIC Corporate, ordering it to return any assets it received from the receivership. Am. Compl. ¶ 54. FDIC Corporate separately moved to dismiss this single claim against it, arguing that 12 U.S.C. § 1821(d)(10)(B) bars relief. The Court agrees.

MBIA alleges that FDIC Conservator or FDIC Receiver paid FDIC Corporate "in satisfaction of certain contractual obligations owed to FDIC-Corporate that arose in connection with the chartering of IndyMac Federal." Id. ¶ 85. It claims that by accepting those payments, FDIC Corporate "exceeded its authority under FIRREA" because the funds were not used instead to satisfy MBIA's claims. Id. ¶ 189. Thus, MBIA premises FDIC Corporate's liability on its flawed theory that its own unpaid claims qualify as administrative expenses as opposed to general unsecured creditor claims.

In response, FDIC Corporate argues that 12 U.S.C. section 1821(d)(10)(B) bars relief. That section provides:

12 U.S.C. § 1821(d)(10)(B) (emphasis added). The plain language of this provision bars an action against FDIC Corporate for payment on proved claims by FDIC Receiver. This language undoubtedly includes payment for proved claims by FDIC Corporate.

In its amended complaint MBIA simply alleges that FDIC Receiver paid FDIC Corporate for "certain contractual obligations owed to FDIC-Corporate," and that if those payments are administrative expenses, "the FDIC exceeded its authority under FIRREA ... to ensure that all parties holding administrative expense claims received a pro rata portion of whatever funds were available to satisfy such claims." Id. ¶¶ 85, 86. This claim fails in light of this Court's ruling that MBIA's claims are not administrative expenses. Moreover, plaintiff's claim that "FDIC was obligated to treat MBIA's claims and the obligations to FDIC-Corporate equally and distribute payment on a pro rata basis if there were insufficient funds to cover both MBIA's claims and FDIC-Corporate obligations," id. ¶ 14 (emphasis added), is contrary to section 1821(d)(10)(B).

MBIA alternatively alleges that "[i]In the event the FDIC, in its capacity as receiver or conservator of IndyMac Federal, treated IndyMac Federal's obligations to FDIC-Corporate as payment for anything other than an administrative expense, then the FDIC also exceeded its authority under FIRREA. As an administrative expense ... MBIA's claims were to be satisfied by IndyMac Federal on a priority basis, ahead of other claims." Id. ¶ 87; see also id. ¶ 189. This claimed basis for a judgment against FDIC Corporate also depends upon the administrative expense theory rejected by the Court. Furthermore, by merely hinting in paragraph 87 at the "sheer possibility" that FDIC Corporate has acted unlawfully, MBIA falls short of the pleading requirement under Rule 12(b)(6). Iqbal, 129 S.Ct. at 1949. Because MBIA's allegations do not include any facts to suggest FDIC Corporate was improperly paid for claims that were not "proved claims," section 1821(d)(10)(B) bars MBIA from recovering against FDIC Corporate.24

Therefore, under the facts alleged in MBIA's amended complaint, Count VI must be dismissed as against FDIC Corporate for failure to state a claim.25

B. Section 1821(m) does not entitle MBIA to recover from FDIC Corporate

In opposition to FDIC Corporate's motion, MBIA identified an alternative theory of recovery from those set out in the amended complaint, and it argues that 12 U.S.C. § 1821(m) requires FDIC Corporate to reimburse it for its losses.26 Pl.'s Opp. to Rec. at 27, citing 12 U.S.C. § 1821(m)(11)-(13). That section provides that if FDIC forms a new depository institution when an insured bank fails, the FDIC, in its corporate capacity, shall provide the new federally chartered bank with an amount equal to the estimated insured deposits that are in default, "plus the estimated amount of the expenses of operating" the new bank. 12 U.S.C. § 1821(m)(11)(A). If the new bank, "during the period it continues its status as such, sustains any losses with respect to which it is not effectively protected except by reason of being an insured depository institution," then FDIC Corporate "shall furnish to it additional funds in the amounts of such losses." Id. § 1821(m)(13). MBIA argues that this requirement that FDIC Corporate cover the new bank's "losses ... should include damages arising from the conservator's breach of contractual obligations." Pl.'s Opp. to Rec. at 27.

This argument fails for several reasons. First, the statute makes clear that the FDIC Corporate's obligation to pay the new institution for losses extends only "during the period" of the conservatorship. 12 U.S.C. § 1821(m)(13). Here, the conservatorship ceased to exist on March 19, 2009. MBIA's suggestion that the statute creates an open-ended obligation to pay for the conservatorship's "losses" beyond the time it ceases to exist is inconsistent with the plain language of the statute. Also, MBIA's theory—that this provision obligates FDIC Corporate to provide the new institution with funds to satisfy all of the insolvent bank's creditors' claims—strains the interpretation of the word "losses" well beyond its ordinary meaning. MBIA's reading is also inconsistent with section 1821(i)(2), which explicitly limits the liability of the FDIC—acting in any capacity—for claims against the receiver to the assets of the receivership. Finally, as FDIC Receiver pointed out at oral argument, it is not clear that section 1821(m) gives third parties a private right of action against FDIC Corporate. In short, MBIA's claimed damages are not "losses" of IndyMac Federal under section 1821(m), but they are—as MBIA repeatedly alleges, see, e.g., Am. Compl. ¶¶ 78, 108—simply "claims" presented to FDIC Receiver for payment under the FIRREA distribution scheme. The Court therefore finds that section 1821(m) does not apply in this case.

CONCLUSION

For the foregoing reasons, the Court will grant both FDIC Corporate and FDIC Receiver's motions to dismiss. Counts I-V and VIII will be dismissed with respect to all defendants pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Counts VI and VII will be dismissed with respect to all defendants pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. A separate order will issue.