Conroy v. Federal

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2372 No. 97-1502 JOHN P. CONROY, ET AL., Plaintiffs, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER OF WOBURN FIVE CENTS SAVINGS BANK, Defendant, Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] ____________________ Before Torruella, Chief Judge, Stahl and Lynch, Circuit Judges. ____________________ John P. Conroy on briefs pro se. Ann S. Duross, Assistant General Counsel, Colleen B. Bombardier, Senior Counsel, Maria B. Valdez, Acting Senior Counsel, and Daniel Glenn Lonergan, Counsel, Federal Deposit Insurance Corporation, on briefs for appellee. ____________________ March 27, 1998 ____________________ Per Curiam. John P. Conroy, on behalf of himself and his wife, Patricia E. Conroy, has filed two essentially duplicative appeals. The first notice of appeal (No. 96-2372) was filed from a margin order granting the FDIC's motion to dismiss. The grant of dismissal was thereafter memorialized in a separate piece of paper as an Order of Dismissal and Conroy filed a second notice of appeal (No. 97-1502). Although the appeals are duplicative, the parties have each filed a separate brief in each appeal. Despite filing two appellate briefs, neither of Conroy's briefs effectively addresses the district court decision and we, therefore, affirm. Conroy's brief in No. 97-1502 is off-point. The subject of this brief is an administrative proof of claim that post- dated the district court's final order of dismissal. As district court jurisdiction does not obtain prior to exhaustion of the administrative claims review process, see Forbes v. FDIC, 850 F. Supp. 94, 97 (D. Mass. 1994), the subject of that later administrative claim was not properly before the district court, despite Conroy's attempt to raise the substance of this new claim at the October 31, 1996 hearing on the FDIC's motion to dismiss. Appropriately, the district court did not rule (or for that matter, purport to rule) on the substance of this new claim. Accordingly, the subject of this new claim is not properly before us in this appeal. And, while Conroy's brief in No. 96-2372 at least appears focused on the district court's dismissal order, it consists of four sentences and is devoid of supported argument. As we have reiterated on occasions too numerous to recount, "issues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived for purposes of appeal." Grella v. Salem Five Cent Savs. Bank, 42 F.3d 26, 36 (1st Cir. 1994). In any event, contrary to Conroy's assertion, the fact that the district court later concluded that it did not have jurisdiction over Conroy's claims because they were either time-barred or had not been presented to the FDIC in its administrative claims review process does not demonstrate that the district court "clearly violat[ed] his [sic] earlier decision and clearly violat[ed] due process." The FDIC expresses understandable distress at Conroy's continuing delaying tactics which have frustrated its legitimate right to proceed with the resolution of a foreclosure that occurred in September 1995 and asks us to enjoin Conroy from bringing any further claim seeking equitable and/or injunctive relief. We decline to enter such an injunction, at least at this time, leaving the appropriateness of entering such an injunction to the consideration of the district court in the event of future litigation. We point out, however, that, by failing to make any relevant, substantive arguments in these appeals, Conroy thereby effectively has waived any challenge to the district court's rulings, including its determination that the grant of injunctive or equitable relief, including rescission, is barred by the anti-injunction statute, 12 U.S.C. 1821(j). It would appear that, in any event, res judicata would play a significant, perhaps determinative, role in any future litigation. Conroy's request for oral argument is denied. The case of Beach v. Ocwen Fed. Bank, 692 So. 2d 146 (Fla.), cert. granted, 118 S. Ct. 294 (1997), currently pending before the Supreme Court, does not involve the FDIC and, therefore, it is unlikely that that Court will have to speak to the additional factor presented by the anti-injunction statute. More importantly, because Conroy has presented no substantive argument to contest the district court's decision (and instead seeks to raise an issue not properly before either the district court or this court), we need not reach the substance of the Truth-in-Lending Act claims he presented below. Affirmed.