RAWLINSON, Circuit Judge:
In this interlocutory appeal, Appellant Deutsche Bank National Trust Co. (Deutsche Bank) challenges the district court's dismissal of its claims against the Federal Deposit Insurance Corporation (FDIC).
The dispositive issue is whether Deutsche Bank's claims are general unsecured claims under 12 U.S.C. § 1821(d)(11) and thereby prudentially mooted by the lack of sufficient funds in the estate to pay unsecured claims. Deutsche Bank maintains that it possesses superpriority claims and that 12 U.S.C. § 1821(d)(11) is inapplicable because the FDIC exceeded its statutory authority by splitting the governing agreements and transferring the servicing rights without Deutsche Bank's consent. Assuming that the FDIC breached the governing agreements, we nevertheless affirm the district court's dismissal of Deutsche Bank's claims because the purported breach did not transform Deutsche Bank's general unsecured claims into superpriority claims.
According to its Complaint, Deutsche Bank served in the capacity as trustee for more than 240 mortgage securitization trusts created by IndyMac. Prior to its failure in July, 2008, IndyMac functioned as a mortgage securitizer, acquiring mortgage loans that it sold to the Trusts. According to Deutsche Bank, the Trusts subsequently sold residential mortgage-backed securities "supported by the cash flows on the underlying mortgage loans."
IndyMac's success in attracting investors to purchase the mortgage-backed securities depended on IndyMac's representations and promises that a single entity (IndyMac) would perform the interrelated services necessary to protect, preserve, and service the Trust assets. The mortgage-backed securities transactions were governed by agreements that established and regulated the Trusts and the related relationships among the parties with interests in the Trusts. Among the Governing Agreements were Pooling and Servicing Agreements (PSAs), Sale and Servicing Agreements, Indentures, and Trust Agreements. Pursuant to the Governing Agreements,
On July 11, 2008, the Office of Thrift Supervision closed IndyMac, appointed the FDIC as receiver, created a new savings bank, IndyMac Federal, and appointed the FDIC as conservator (FDIC-C) of IndyMac Federal. Another federal savings bank, OneWest Bank, was formed as a thrift holding company to purchase IndyMac Federal's assets and liabilities. As receiver and conservator, the FDIC "succeeded to all rights, titles, powers, and privileges of IndyMac Federal, including those arising under the Governing Agreements or otherwise related to the Trusts." As IndyMac Federal's conservator, the FDIC administered the Trusts and serviced the mortgages based on servicing rights established by the Governing Agreements. In that capacity, the FDIC sold certain assets and rights of IndyMac Federal to OneWest for approximately $13.9 billion.
Deutsche Bank alleged that
According to Deutsche Bank, the FDIC exceeded its statutory authority "[i]n attempting to sell, and thereby reap the benefits of, the Governing Agreements without assuming and assigning (or otherwise performing) the related obligations..." Deutsche Bank averred that "[i]n the sale to OneWest, the FDIC purported to split unitary contracts and divide rights and obligations that [were] not severable."
Deutsche Bank also alleged that the FDIC, as receiver, breached several representations and warranties and failed to comply with the Governing Agreements, particularly in servicing the mortgage loans. Deutsche Bank averred that the FDIC's conduct resulted in approximately $6 billion to $8 billion in damages to the Trusts and Trustee.
Deutsche Bank asserted causes of action against the FDIC for pre-failure breach of contract as IndyMac Federal's receiver and conservator, (Count One); post-failure breach of contract as conservator, (Count Two); breach of contract for sale to OneWest as conservator, receiver, and in its corporate capacity, (Count Three); repudiation
Because Deutsche Bank's claims depend on whether it is a general unsecured creditor under the distribution priorities set forth in 12 U.S.C. § 1821(d)(11), discussion of the applicable statutory framework, as interpreted in our precedent, sets the stage for our resolution of this case.
"Congress passed FIRREA in 1989 in response to the crisis in the nation's banking and savings and loan industries. The statute allows the FDIC to act as receiver or conservator of a failed institution for the protection of depositors and creditors." Sharpe v. FDIC, 126 F.3d 1147, 1154 (9th Cir.1997) (citation omitted). "Congress granted the FDIC broad powers in conserving and disposing of the assets of the failed institution. To enable the FDIC to move quickly and without undue interruption to preserve and consolidate the assets of the failed institution, Congress enacted a broad limit on the power of courts to interfere with the FDIC's efforts...." Id. (citation and internal quotation marks omitted).
Pursuant to 12 U.S.C. § 1821(d)(2)(H), "[t]he [FDIC], as conservator or receiver, shall pay all valid obligations of the insured depository institution in accordance with the prescriptions and limitations of this chapter." The FDIC has the additional task under 12 U.S.C. § 1821(d)(13)(E) of "maximiz[ing] the net present value return from the sale or disposition of such assets" and "minimiz[ing] the amount of any loss realized in the resolution of cases[.]" However, under 12 U.S.C. § 1821(e), the FDIC also has the authority to repudiate "any contract or lease ... the performance of which the conservator or receiver, in the conservator's or receiver's discretion, determines to be burdensome ..." 12 U.S.C. § 1821(e)(1)(B). If the FDIC decides to repudiate a contract under this provision, "the liability of the conservator or receiver for the disaffirmance or repudiation ... shall be — (i) limited to actual direct compensatory damages ..." Id. § 1821(e)(3)(A)(i).
As a corollary to FIRREA, in 1993 Congress adopted the National Depositor Preference Amendment to the Federal Deposit Insurance Act. This legislation provided "that in the distribution of the assets of a failed institution depositors be paid before general creditors could collect on their claims." MBIA Ins. Corp. v. FDIC, 708 F.3d 234, 236 (D.C.Cir.2013) (footnote reference omitted). This preference amendment establishing the distribution priority framework for failed institutions was codified in 12 U.S.C. § 1821(d)(11). See id. The codified distribution priority framework sets forth the following hierarchy of claims:
12 U.S.C. § 1821(d)(11)(A).
The dispositive issue in this appeal is whether Deutsche Bank's claims constitute third-tier general liabilities under 12 U.S.C. § 1821(d)(11)(A)(iii) rather than claims payable outside the strictures of § 1821(d). Deutsche Bank maintains that because the FDIC exceeded its statutory authority and breached the agreements without properly repudiating them, the distribution scheme delineated in § 1821(d)(11) does not apply, and thus its claims are payable without regard to these provisions. Deutsche Bank's argument is primarily premised on its interpretation of three cases: Sharpe; Battista v. FDIC, 195 F.3d 1113 (9th Cir.1999); and McCarthy v. FDIC, 348 F.3d 1075 (9th Cir.2003).
In Sharpe, Whitney and Mona Sharpe entered into a settlement agreement with Pioneer Bank to resolve a real estate foreclosure action. See Sharpe, 126 F.3d at 1150. The Sharpes and Pioneer agreed that Pioneer would remit $510,000 by wire transfer to the Sharpes when the Sharpes provided the requisite note, deed of trust, and reconveyance documents. See id. at 1150-51. In direct contravention of the settlement agreement's wire transfer requirement, Pioneer sent the Sharpes two cashier's checks. See id. at 1151. Before the Sharpes could deposit the checks, state regulators seized Pioneer, and the FDIC was appointed as Pioneer's receiver. See id. As receiver, the FDIC "step[ped] into the shoes" of Pioneer. Id. at 1152. The FDIC took possession of the reconveyance documents provided by the Sharpes and recorded them, but informed the Sharpes that it would not honor the cashier's checks. See id. at 1151.
The Sharpes sued the FDIC for enforcement of the settlement agreement. See id. However, the district court held that FIRREA precluded judicial review of the Sharpes' claims because they were "effectively depositors, and therefore creditors of Pioneer" subject to FIRREA's exhaustion requirements. Id. On appeal, the Sharpes asserted that "the district court failed to accept the breach of contract nature of their cause of action and improperly applied FIRREA requirements as if the Sharpes were creditors of Pioneer...." Id. at 1152. The FDIC maintained that dismissal was warranted on jurisdictional grounds because the Sharpes were creditors as holders of Pioneer's cashier's checks and that 12 U.S.C. § 1821(j) deprived the district court of jurisdiction over the Sharpes' claims for equitable relief. See id.
We held "that the FDIC did not act within its statutorily granted powers in breaching the Sharpes' settlement agreement because recording of the reconveyance of the debtor's deed of trust for which it did not pay full consideration cannot be considered a statutorily authorized function of the FDIC." Id. at 1155. Therefore, the Sharpes' claims for rescission and declaratory relief were not barred by 12 U.S.C. § 1821(j). See id.
We also rejected the FDIC's argument that "the Sharpes' cause of action constitute[d] an administrative claim subject to the exhaustion requirement...." Id. We observed that "Section 1821(d) sets forth an administrative claims process, which requires that creditors submit claims to the FDIC for administrative resolution. If the Sharpes [were] considered creditors, they [would be] subject to that claims process." Id. at 1156 (footnote reference and internal quotation marks omitted). However, we concluded that the Sharpes were not required to submit to the FDIC administrative process because they did not become creditors of the FDIC by accepting the cashier's check. See id. We reasoned that "[b]ut for the FDIC's breach, the full cash amount specified in the settlement agreement would have been wired to the Sharpes. It is only as a consequence of the FDIC's breach that the FDIC can construe the Sharpes as creditors of the FDIC...." Id.
Notably, we observed that "[b]ecause the FDIC did not repudiate the agreement pursuant to § 1821(e), we need not decide here whether claims against the FDIC regarding contract repudiation under § 1821(e) are subject to the exhaustion requirement." Id. at 1157 n. 7 (citations omitted).
We held:
Id. at 1157.
In Battista, former employees of an insolvent bank sued the FDIC based on the
We also distinguished Sharpe, expressly clarifying that Sharpe did not exempt claimants whose contracts had been repudiated from the claims administration process set forth in § 1821(d). See Battista, 195 F.3d at 1119.
In McCarthy, we considered the dismissal of an action challenging the way the FDIC handled a loan the plaintiff was negotiating with a bank after the bank failed and the FDIC was appointed as receiver. See McCarthy, 348 F.3d at 1076. The plaintiff alleged that he was forced to accept a new loan on a "take-it-or-leave-basis and that he would not have executed this loan had he known of [the bank's] closure and the FDIC's receivership...." Id. at 1077 (internal quotation marks omitted). The district court held that it lacked subject matter jurisdiction because the plaintiff failed to satisfy FIRREA's exhaustion requirements. See id. Relying on Sharpe, the plaintiff asserted that FIRREA's exhaustion requirements were inapplicable because he was a debtor, not a creditor, of the insolvent bank and because his claims were premised on the FDIC's post-receivership conduct. See id. at 1076-77.
We rejected the plaintiff's argument premised on Sharpe, explaining that Sharpe was not controlling because that case was decided in a different context, where the Sharpes were neither creditors nor debtors of the failed institution. See id. at 1077. We noted that "[t]he text of § 1821(d)(13)(D) plainly states that any claim or action that asserts a right to assets of a failed institution is subject to exhaustion. There is no limitation to creditors, or exclusion of debtors, and that is controlling." Id. at 1077 (emphases in the original). We emphasized that "Sharpe was an unusual case," and that in Sharpe
We concluded:
Id. at 1079 (citation and internal quotation marks omitted).
In its initial order, the district court denied in part and granted in part the FDIC's motion to dismiss Deutsche Bank's claims. The district court held that, because the FDIC exceeded its statutory authority in splitting the Pooling and Servicing Agreements without Deutsche Bank's consent, our discussion in Sharpe mandated rejection of the FDIC's arguments that prudential mootness precluded Deutsche Bank's claims and that Deutsche Bank's claims were subject to the priority scheme set forth in 12 U.S.C. § 1821(d)(11). See Deutsche Bank Nat'l Trust Co. v. FDIC, 784 F.Supp.2d 1142, 1159-60, 1170 (C.D.Cal.2011) (Deutsche Bank I).
The district court determined that, because Deutsche Bank alleged that the FDIC breached the contracts, rather than repudiating them, Sharpe "makes clear that damages resulting from the FDIC's breach of a contract are not subject to the § 1821(d)(11) distribution priority scheme...." Id. at 1159. Applying Sharpe, the district court opined that § 1821(d)(11)'s priority scheme was inapplicable because "a claim against the FDIC for post-seizure breach of contract does not constitute a claim under FIRREA ..." Id. at 1159-60. The district court delineated that, at this stage in the litigation, it was unnecessary to discern "whether damages will ultimately be payable from the receivership or from FDIC-C's own funds. Even if the damages will come from the receivership, Deutsche Bank's claim will take priority over the categories identified in § 1821(d)(11), and there is accordingly a possibility of recovery...." Id. at 1160. The district court denied the FDIC's motion to dismiss Deutsche Bank's claim and held that "Deutsche Bank may proceed with its breach of contract claim arising out of the sale of assets to OneWest Bank." Id.
The district court subsequently granted the FDIC's motion for reconsideration of the prudential mootness issue. See Deutsche Bank Nat'l Trust Co. v. FDIC, 854 F.Supp.2d 756, 759 (C.D.Cal.2011) (Deutsche Bank II). Reconsidering its prior ruling, the district court analyzed whether Battista and McCarthy undermined its holding, based on Sharpe, "that if a claim for post-receivership breach of a pre-receivership contract does not qualify as a claim within the meaning of FIRREA's exhaustion requirement, it likewise did not qualify as a claim subject to the § 1821(d)(11) distribution priority." Id. at 761 (citation and internal quotation marks omitted). Although the district court concluded that Battista did not impact its prior ruling, see id. at 761-62, the district court held that McCarthy compelled dismissal of Deutsche Bank's claims as prudentially moot. See id. at 764-67.
The district court observed that "[t]he decision in Sharpe did not squarely address the issue presented here: whether a claim for post-receivership breach of a pre-receivership contract qualifies as a general unsecured liability under the § 1821(d)(11) distribution priority, or whether it falls outside of that scheme altogether...." Id. at 764. According to the district court, McCarthy "undercuts Sharpe's reasoning" because "[b]y holding that a debtor can have a claim subject to exhaustion, McCarthy eliminates that key step in Sharpe's logic." Id. (internal quotation marks omitted). "McCarthy, however, did not — and could not — overrule Sharpe." Id. As a result, the district court interpreted McCarthy as "distinguish[ing] Sharpe and limit[ing] its holding that a claimant need not exhaust administrative remedies to claims arising out of a breach of contract in the circumstances present in Sharpe...." Id. at 765 (citation and internal quotation marks omitted). The district court determined that Deutsche Bank's claims were not covered by Sharpe's exception because "Deutsche Bank had not fully performed its obligations, but rather had continuing obligations to pay servicing fees over time. Thus, its claims for post-receivership breach of pre-receivership contracts are subject to the § 1821(d)(11) distribution priority." Id. at 766. The district court held that, because Deutsche Bank's breach of contract claims were "third-tier general unsecured claims[,] Deutsche Bank ... cannot recover anything on those claims given IndyMac's deep insolvency...." Id. at 767. Finding prudential mootness, the district court dismissed Deutsche Bank's claims with prejudice "except for the second cause of action... for post-failure breach of contract to the extent that it is based on the alleged breach of contracts that [FDIC as Receiver] executed or approved, which would be entitled to a priority right of payment under 12 U.S.C. § 1821(d)(20) ..." Id. (internal quotation marks omitted).
The district court also sua sponte certified "the prudential mootness issue for interlocutory appeal by Deutsche Bank." Id. at 768 (citation omitted). The district court "conclude[d] that the question whether claims for post-receivership breach of a pre-receivership contract are subject to the § 1821(d)(11) distribution priority constitute[d] a controlling question of law worthy of certification." Id. The
We granted "[t]he petition for permission to appeal pursuant to 28 U.S.C. § 1292(b)," and limited the appeal "to the specific question of law certified by the district court ..."
We review de novo whether Deutsche Bank's claims are prudentially moot. See Hunt v. Imperial Merch. Servs., 560 F.3d 1137, 1141 (9th Cir.2009). "We also review de novo a district court's interpretation and construction of a federal statute." Holmes v. Merck & Co., Inc., 697 F.3d 1080, 1082 (9th Cir.2012) (citation omitted).
In addition to challenging the district court's holding concerning prudential mootness, Deutsche Bank contends that the district court erred in holding that the PSAs constituted qualified financial contracts that could be severed pursuant to 12 U.S.C. § 1821(e)(9), thereby negating Deutsche Bank's related breach of contract and constructive trust claims. The FDIC counters that this issue was not included in the question of law certified by the district court.
"[A]n appellate court's interlocutory jurisdiction under 28 U.S.C. § 1292(b) permits it to address any issue fairly included within the certified order because it is the order that is appealable, and not the controlling question identified by the district court...." Nevada v. Bank of Am. Corp., 672 F.3d 661, 673 (9th Cir.2012) (citation and internal quotation marks omitted) (emphasis in the original).
In this appeal, the dispositive issue, and the only issue certified in the district court's order, concerns prudential mootness. Encapsulated within that issue is whether Deutsche Bank's claims constitute third-tier general unsecured claims under 12 U.S.C. § 1821(d)(11). Although we have authority to review issues fairly included within the certified order, review of issues not included in the certified order would obliterate the distinction between interlocutory appeals and appeals after final judgment and would encourage circumvention of the conventional appeals process. Perhaps in recognition of that risk, "[c]ommentators and courts have consistently observed that the scope of the issues open to the court of appeals [under § 1292(b)] is closely limited to the order appealed from and the court of appeals will not consider matters that were ruled upon in other orders." United States v. Stanley, 483 U.S. 669, 677, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (citations, alterations, and internal quotation marks omitted); see also Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 46, 50, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (noting that the authority to review interlocutory appeals is "circumscribed" and that the rule should not be interpreted to "parlay" interlocutory orders into "multi-issue interlocutory appeal tickets"); Durkin v. Shea & Gould, 92 F.3d 1510, 1514 (9th Cir.1996) ("[A]ppellate review is limited to the certified order; issues presented by other, noncertified orders could not be considered simultaneously[.]")(citation, alteration, and footnote reference omitted). In keeping with the letter and spirit of § 1292(b), our precedent, and Supreme Court guidance, we limit the scope of this appeal to the
The doctrine of prudential mootness permits a court to "dismiss an appeal not technically moot if circumstances have changed since the beginning of litigation that forestall any occasion for meaningful relief...." Hunt, 560 F.3d at 1142 (citations, alteration, and internal quotation marks omitted). Although we have not extensively applied the prudential mootness doctrine per se, we have concluded that claims against a receiver are moot if those claims cannot be satisfied due to a lack of post-receivership assets. For example, in Henrichs v. Valley View Dev., 474 F.3d 609, 615 (9th Cir.2007), we determined that "a claim for damages against the FDIC stemming from the FDIC's alleged breach of the FDIC Settlement Agreement" was moot because "[t]he receivership distributed all of the failed bank's assets" and no assets remained to satisfy the alleged breach of contract claims.
The district court's dismissal of Deutsche Bank's third-tier general unsecured claims as prudentially moot is legally sound. Pursuant to 12 U.S.C. § 1821(d)(11)(A)(iii), claims that are "general or senior liabilit[ies] of the institution" constitute third-tier claims that do not receive payment until claims for administrative expenses and claims from the institution's depositors have been satisfied. Notably, 12 U.S.C. § 1821(d)(11) does not contain statutory exceptions for a particular species of general liability. Rather, § 1821(d)(11)(A)(iii) provides that "[a]ny other general or senior liability" constitutes a third-tier priority claim. 12 U.S.C. § 1821(d)(11)(A)(iii) (emphasis added). This plain language in the statute reflects clear Congressional intent to not carve out an exception for general unsecured claims based on breaches of non-repudiated contracts. See United States v. Havelock, 664 F.3d 1284, 1292 (9th Cir. 2012) (en banc) ("[W]e are not in the business of rewriting the law, but that of interpreting Congress's words when it enacted the statute....") (citation omitted).
Relying on Sharpe, Deutsche Bank posits that FIRREA does not protect the FDIC when it exceeds its statutory authority by breaching pre-receivership contracts. The import of Deutsche Bank's argument is that if FIRREA does not apply to protect the FDIC from breach of contract claims, FIRREA similarly cannot cabin Deutsche Bank's claims through the application of § 1821(d)(11). However, this rationale derived from Sharpe does not apply to the facts of this case. As we recognized in McCarthy, "Sharpe was an unusual case...." 348 F.3d at 1078. Given that we have limited Sharpe's reach even in the administrative exhaustion context, see id., it would be illogical for us to expand Sharpe to more substantive provisions, such as 12 U.S.C. § 1821(d)(11), that were not at issue or addressed in Sharpe. See Sharpe, 126 F.3d at 1152 (describing the case as involving 12 U.S.C. § 1821(i) and administrative exhaustion). Although the panel in Sharpe wrote that "FIRREA does not permit the FDIC to breach contracts at will," it did not hold or even imply that breach of contract claims are categorically
Even if applicable to Deutsche Bank's claims, Sharpe militates against Deutsche Bank's assertion of a superpriority claim. In Sharpe, we determined that the FDIC could have invoked FIRREA's administrative exhaustion requirements if the plaintiffs had been creditors. See id. at 1156 ("Section 1821(d) sets forth an administrative claims process, which requires that creditors submit claims to the FDIC for administrative resolution. If the Sharpes [were] considered creditors, they [would be] subject to that claims process.") (footnote reference and internal quotation marks omitted). We reasoned that the plaintiffs were not creditors because "[b]ut for the FDIC's breach, the full cash amount specified in the settlement agreement would have been wired to the Sharpes. It is only as a consequence of the FDIC's breach that the FDIC can construe the Sharpes as creditors of the FDIC...." Id.
In McCarthy, we recognized the dichotomy between creditor and non-creditor claimants and opined that Sharpe was of limited utility in deciding whether a debtor's claim must be exhausted, because the facts in Sharpe did not include either classification of claimant. See McCarthy, 348 F.3d at 1078 (observing that in Sharpe "we had no occasion to decide whether a debtor's claim or action, like a creditor's, must be exhausted, for the Sharpes were not debtors and our decision turned on the claimants' being aggrieved parties to a contract that the FDIC had not repudiated"). Unlike in Sharpe, Deutsche Bank's agreements with IndyMac established a creditor relationship between Deutsche Bank and the FDIC as IndyMac's successor, prior to the FDIC's alleged post-receivership breach of contract. Indeed, the allegations of the complaint reflect the extensive nature of Deutsche Bank's creditor status. Deutsche Bank's Sharpe-inspired argument that the FDIC cannot utilize FIRREA's priority framework due to FDIC's breach is thus undermined by Deutsche Bank's status as a creditor. See Sharpe, 126 F.3d at 1156 ("If the Sharpes [were] considered creditors, they [would be] subject to that claims process [under § 1821(d)].")
We, therefore, hold that Sharpe was limited to its particular facts and does not bar application of the statutory priority distribution framework to Deutsche Bank's general unsecured claims.
In sum, Sharpe and Battista do not support Deutsche Bank's attempt to avoid the priority distribution scheme of 12 U.S.C. § 1821(d), as neither case addressed application of the priority distribution scheme to a creditor like Deutsche Bank. Because Deutsche Bank's overly broad assertion of a superpriority claim is not supported by any controlling precedent, Deutsche Bank's claims must be evaluated under the statutory priority framework. Applying the provisions of 12 U.S.C. § 1821(d), we agree with the district court that Deutsche Bank's third-tier unsecured claims are prudentially moot because Deutsche Bank
Although the FDIC arguably breached the contracts at issue rather than repudiating them, Sharpe does not support Deutsche Bank's broad assertion that it is entitled to a superpriority claim in contravention of the explicit hierarchy of payment set forth in 12 U.S.C. § 1821(d)(11). Adopting Deutsche Bank's interpretation of 12 U.S.C. § 1821(d)(11) would disadvantage other equally deserving creditors who are constrained by the statutory payment priority framework. Because Deutsche Bank is a quintessential creditor, its claims are third-tier general unsecured liabilities under 12 U.S.C. § 1821(d)(11)(A)(iii), and the district court properly held that Deutsche Bank's claims were prudentially moot, as there were insufficient funds to satisfy general unsecured liabilities. See Henrichs, 474 F.3d at 615; see also Deutsche Bank II, 854 F.Supp.2d at 760 ("The FDIC has made a determination that the assets of IndyMac and IndyMac Federal are insufficient to make any distribution on general unsecured claims and therefore, such claims, asserted or unasserted, will recover nothing and have no value....") (citation, footnote reference, and internal quotation marks omitted).
Id. at 243-44 (citations, alterations, footnote references, and internal quotation marks omitted) (emphasis in the original). The D.C. Circuit held that "[t]he district court therefore properly rejected MBIA's broad interpretation of `approved' in § 1821(d)(20) and dismissed MBIA's damages claims ... as prudentially moot in light of the FDIC's No Value Determination." Id. at 245 (citation omitted). "Where it is so unlikely that the court's grant of remedy will actually relieve the injury, the doctrine of prudential mootness permits the court in its discretion to stay its hand, and to withhold relief it has the power to grant by dismissing the claim for lack of subject matter jurisdiction ..." Id. (citation and internal quotation marks omitted).
