a claimant may seek judicial review in the United States district court for the district in which the depository institution's principal place of business is located. 12 U.S.C. § 1821(d)(6). Morton has met these prerequisites.
The Summary Judgment Motions
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court is to draw all reasonable inferences in favor of the non-movant, but the non-moving party is required to go beyond the pleadings and designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
Local Rules 12(m) and 12(n) provide that a party moving for summary judgment must submit a statement listing the material facts it believes to be undisputed and which, taken together, entitle it to judgment as a matter of law. The other party must then respond specifically to these allegations, and, where it denies that a fact is undisputed, it must come forward with references to the record that support a contrary finding. Statements of undisputed fact not denied in accordance with the rule may be deemed admitted. Schulz v. Serfilco, Ltd, 965 F.2d 516 (7th Cir. 1992).
Morton's motion is really two alternative motions. He first contends that, as a matter of law, the receiver did not properly repudiate the Agreement and that it is therefore still in force. Second, in the event that the court rejects that contention, he asks the court to find that he has sustained damages in the amount of $ 31,367, consisting of salary, pension and profit sharing contributions he relinquished in consideration for the Agreement. Arlington's motion simply asks for a judgment that it owes Morton nothing. We will address the motions together and determine whether judgment can be entered in favor of either party as a matter of law.
A. Was the Agreement Executory -- And Does it Matter?
Morton contends that 12 U.S.C. § 1821(e) permits the receiver to repudiate only "executory" contracts, and that the Agreement is not executory. In contrast to the familiar provision of the Bankruptcy Code, 11 U.S.C. § 365(a), the word "executory" does not appear in the statute. Morton cites no authority for his argument, and no court appears to have decided the question. Morton notes that the RTC's First Affirmative Defense referred to the RTC's power to repudiate executory contracts, and points to certain "Guidelines For Repudiation Or Disaffirmance Of Executory Or Unperformed Leases Or Contracts" employed by RTC, Pl. Mo. Exh. K.
The Guidelines, an internal document not formally adopted as a regulation, may not be used in interpreting the statute. Pulley v. Bowen, 817 F.2d 453 (7th Cir. 1987) (Social Security Program Operations Manual could not be considered in interpreting statute because not adopted as a regulation). Furthermore, Arlington states in its brief, without contradiction, that the Guidelines were drafted under pre-FIRREA law. Def. Br. in Support of Mo. for Summary Judgment at 10 n.3. We would be loath to read the word "executory" into the statute unless to omit it would lead to an absurd or unjust result. See Trustees of Iron Workers Local 473 Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir. 1989). While it would clearly be unjust (and perhaps unconstitutional) to permit an institution in receivership to walk away from a contract that had been fully performed on the other side, the provision for a damage remedy largely eliminates that concern. While the Seventh Circuit has noted the definite parallels between the claims handling procedure under FIRREA and the Bankruptcy Code, Unisys Finance Corp. v. RTC, 979 F.2d 609 (7th Cir. 1992), this does not require us to add a limitation to FIRREA that is not there. Congress certainly had the bankruptcy model in mind, and it appears reasonable that Congress, well aware of the reference to executory contracts in the Bankruptcy Code, deliberately omitted it in FIRREA in order to avoid disputes over whether a given contract was executory. Congress intended the administrative claims review process to provide a streamlined method for resolving most claims against failed institutions in a prompt, orderly fashion, without lengthy litigation. See Marquis v. FDIC, 965 F.2d 1148, 1152 (1st Cir. 1992) (citing H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess., at 418-19, reprinted in 1989 U.S. Code Cong. & Admin. News 86, 214-15).
In any event, adopting the definition of "executory" offered by Morton, the definition employed in this Circuit in interpreting § 365(a) of the Bankruptcy Code, the Agreement is executory, so we need not decide the question. The Supreme Court has said that Congress intended the term "executory contract" in § 365(a) of the Bankruptcy Code to mean a contract "'on which performance remains due to some extent on both sides.'" NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522, n. 6, 79 L. Ed. 2d 482, 104 S. Ct. 1188 (1983) (quoting H. R. Rep. No. 95-595, p. 347 (1977)). The Seventh Circuit expanded on this formulation in In re Streets & Beard Farm Partnership, 882 F.2d 233, 235 (7th Cir. 1989):
Taken literally, this definition would render almost all agreements executory since it is the rare agreement that does not involve unperformed obligations on either side. In our view, however, this interpretation would not effect the intent of Congress. Rather, we believe that Congress intended § 365 to apply to contracts where significant unperformed obligations remain on both sides. See V. Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn.L.Rev. 439, 460 (1974) (Defining an executory contract as an agreement where "the obligation of both the bankrupt and the other party are so far unperformed that the failure of either to complete performance would constitute a material breach excusing performance of the other."). In determining the significance of the remaining obligations under a contract we look to relevant state law, in this case the law of Illinois. [citations]