FLAUM, Circuit Judge.
The United States Rural Electrification Administration (REA) brought suit in district court seeking a preliminary injunction to enjoin state court declaratory judgment proceedings involving two rural electric co-operatives to which it had loaned money. The REA argued that because the state court action implicated significant federal interests, the district court should enjoin the state proceeding in favor of a parallel federal proceeding that the REA had initiated, in which all parties to the state court proceeding had been joined. The district court denied the REA's request for an injunction, and the REA now appeals. We vacate the district court's decision and remand for further proceedings consistent with this opinion.
The REA is a United States government agency that makes and guarantees loans to electrification cooperatives set up to furnish electric power to rural areas. It provides financing to generation and transmission cooperatives ("G & Ts") that generate and sell electrical power, as well as to their member
The relationship between G & Ts, distribution cooperatives, and the REA is structured through an instrument known as a wholesale power contract. The contract obligates a member distribution cooperative to purchase all of its electric power over a fixed term from a G & T. When lending money to G & Ts, the REA requires that they enter into wholesale power contracts with member distribution cooperatives; conversely, when lending money to distribution cooperatives, the REA requires them to enter into similar contracts with G & Ts. This arrangement ensures that G & Ts will be able to earn revenue from the sale of power sufficient to repay their REA
Since 1957, the REA has been loaning money for the construction of electric power distribution systems to defendant-appellee Rural Electric Convenience Cooperative (RECC), a distribution cooperative operating in Illinois.
In 1963, with the REA's approval, RECC entered into a wholesale power contract with the Western Illinois Power Cooperative (WIPCO), a generation and transmission cooperative. As amended, the contract's terms extend until 2017. Seven distribution cooperatives (including RECC) located in west-central Illinois were members of WIPCO and each purchased electric power from WIPCO pursuant to wholesale power contracts. WIPCO's fourteen-member board of directors consisted of two members from each of the seven distribution cooperatives. WIPCO was also the recipient of REA loans and guarantees for the construction of electric generating and transmission systems.
In 1989, WIPCO defaulted on its REA-guaranteed loans. As a condition for restructuring WIPCO's debt, the REA required the cooperative to merge with Soyland, a financially healthier G & T that was also a recipient of REA financing. The boards of directors and majorities of both Soyland and WIPCO agreed to the merger, and in March 1989, the entities merged, leaving Soyland as the surviving corporation. As a result of the merger, Soyland succeeded to all of WIPCO's rights under WIPCO's wholesale power contract with RECC, and became liable for all of WIPCO's debts and obligations to the REA.
RECC, a member of WIPCO, refused to acquiesce to the WIPCO-Soyland merger. On April 19, 1989, one month after the merger, RECC submitted to Soyland a written objection to the merger and demanded that Soyland purchase its membership in WIPCO pursuant to the dissenter's rights provision of the Illinois Merger and Consolidation Act, Ill. Rev. Stat. ch. 32, ¶ 188i (1989) ("IMCA").
In response to RECC's suit, the United States, Soyland, and CFC filed suit for declaratory judgment against RECC in district court on October 2, 1989. These parties contended that the RECC-Soyland wholesale power contract was valid and binding, that RECC was in violation of its mortgage with REA, and that the RECC had unlawfully repudiated the wholesale power contract without REA's written consent in violation of section 7 of the Rural
The district court denied the motion for preliminary injunction. The court found that the government had not shown that, absent injunctive relief, an adverse state court judgment would irreparably harm the United States and held that the mere possibility of inconsistent state and federal court judgments did not constitute irreparable harm. The court also concluded that sovereign immunity did not bar the United States from intervening in the state court proceeding to protect its interests, and thus, the government possessed an adequate remedy at law that precluded the award of equitable relief.
We review rulings on motions for preliminary injunctions under a bifurcated standard: factual determinations made by the district court are examined under an abuse of discretion standard, Daryl H. v. Coler, 801 F.2d 893, 897 (7th Cir.1986), whereas the district court's conclusions of law are reviewed de novo, Thornton v. Barnes, 890 F.2d 1380, 1385 (7th Cir.1989). The award of injunctive relief is appropriate in those cases where the moving party can demonstrate that (1) no adequate remedy at law exists; (2) it will suffer irreparable harm absent injunctive relief; (3) the irreparable harm suffered in the absence of injunctive relief outweighs the irreparable harm respondent will suffer if the injunction is granted; (4) the moving party has a reasonable likelihood of prevailing on the merits; and (5) the injunction will not harm the public interest. Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014-15 (7th Cir.1990); Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667, 675 (7th Cir.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988). In order to prevail, the moving party must satisfy each element of this five part test. Roland Machinery Co. v. Dresser Indus., 749 F.2d 380, 386-87 (7th Cir.1984).
It is well settled that the availability of an adequate remedy at law renders injunctive relief inappropriate. See Northern California Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306, 105 S.Ct. 459, 459, 83 L.Ed.2d 388 (1984) (Rehnquist, Circuit Justice) ("A party seeking an injunction from a federal court must invariably show that it does not have an adequate remedy at law."); Beacon Theatres v. Westover, 359 U.S. 500, 509, 79 S.Ct. 948, 956, 3 L.Ed.2d 988 (1959) ("in the federal courts equity has always acted only when legal remedies were inadequate.");
The United States maintains, however, that the doctrine of sovereign immunity prevents it from intervening in the state court action. It observes that "[i]f it were a party to RECC's state court action, the Government's position would necessarily be defensive because RECC seeks to repudiate a contract in which the United States has a secured interest." Government's Brief at 23. The United States contends that absent express congressional authorization, the doctrine of sovereign immunity precludes the government from "subject[ing] itself in a defensive position to the jurisdiction of a state court." Id. at 24.
Sovereign immunity bars those suits that are "prosecuted against the United States." Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 412, 5 L.Ed. 257 (1821). Whether or not a suit is against the sovereign depends upon whether the government is "`the real, substantial party in interest,'" in the pertinent litigation. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)); see also Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052, 10 L.Ed.2d 191 (1963) (per curiam).
Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963).
The overarching principle we glean from the Supreme Court's sovereign immunity jurisprudence is that the jurisdictional bar operates when a suit threatens to impose upon the United States liability for money or property damages or some form of coercive injunctive relief. See Larson, 337 U.S. at 687, 69 S.Ct. at 1460 (sovereign immunity bars suits that "require action by the sovereign or disturb the sovereign's property"). For example, in Land v. Dollar, cited above, sovereign immunity barred the plaintiff's claim that his property was being unlawfully held by the United States. In Larson, plaintiff attempted to enjoin the War Assets Administrator from selling a shipment of coal to another prospective buyer on the ground that the coal had been contractually promised to him. And in Dugan, the Supreme Court held that sovereign immunity barred plaintiff's attempt to enjoin the United States from impounding water behind a dam pursuant to Congress' express authorization.
Money damages against the United States are not at stake in RECC's state court suit. Neither is coercive injunctive relief. The government contends, however, that "a proceeding against property in which the United States has an interest is a suit against the United States." Government's Brief at 23, (quoting United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327 (1941) (emphasis added)). It argues that under this broad formulation, REA's security interest in the RECC-Soyland contract transforms RECC's declaratory judgment action to void the contract into a suit against the United States and bars the government's intervention.
Before addressing the merits of the government's position, we pause first to lay bare its clear and unavoidable implication. If RECC's state court suit is effectively a "suit against the United States" because of the REA's security interest in the wholesale power contract, then whether or not the government intervenes is irrelevant: the REA's security interest remains equally threatened by RECC's state court action either way. Thus, although the government seems to contend that sovereign immunity only precludes its intervention in state court, the logical import of its argument is that any suit implicating a security interest held by the United States is inescapably a suit against the United States that should be barred by sovereign immunity. Were we to credit this argument, we would be compelled to find that, even as currently configured, (i.e., without the government's participation), RECC's state court suit is a suit against the United States that ought to be barred by sovereign immunity.
We proceed to address the argument that because "a proceeding against property in which the United States has an interest is a suit against the United States," 313 U.S. at 274, 61 S.Ct. at 1011, RECC's state court suit implicates the sovereign immunity doctrine. Although Chief Justice Hughes indeed referred to property "interests" triggering the sovereign immunity bar in United States v. Alabama, the interests at issue in that case were ownership interests. We believe it would be inappropriate to loose the Court's statement from these factual moorings and read it as a categorical endorsement of the proposition that any proceeding that might possibly
The ramifications of the government's proposed sovereign immunity theory are indeed striking. The government's reading would enable it to employ sovereign immunity and the Leiter doctrine, in the absence of statutory removal authority, as a lever with which to remove to federal court a wide variety of state common law proceedings involving, perhaps only tangentially, the recipients of federal loan guarantees. The government's position would open the door to the total federalization of state actions involving, for example, the recipients of student loans with federal guarantees, or FHA-guaranteed mortgage holders. Consider a physician with $100,000 in federally guaranteed student loans. She is sued for malpractice, and the potential liability threatens to bankrupt her. May the government preempt the state tort action by filing a parallel declaratory judgment action in federal court (assuming federal jurisdiction) and moving to enjoin the state court proceedings on the ground that the government's interests in not making good on its guarantee are threatened by the state court suit and sovereign immunity thus bars the prosecution of the state action? To be sure, the government is unlikely to adopt such a litigation strategy. Nevertheless, we are wary of expanding the sweep of sovereign immunity to a degree that would allow and perhaps encourage such manipulation.
Even more troubling is the prospect that the government and private parties aligned with it could deploy sovereign immunity not merely to federalize state proceedings, but to extinguish the ability of private parties to litigate their state claims altogether. If a suit implicating a government security interest is a suit against the United States, then, as we suggest above, the action
We conclude that neither Supreme Court precedent nor sound public policy considerations direct acceptance of the government's argument that a suit implicating a government security interest is categorically a suit against the United States that should be barred by sovereign immunity. That is not to say that a suit implicating a government security interest will never trigger the sovereign immunity bar. Rather, as we suggested earlier, the question to be determined in each case is whether the government's interest are such as to make it a "real, substantial party in interest" in the litigation. See Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 374, 66 S.Ct. 219, 221, 90 L.Ed. 140 (1945) ("[t]he government's interest must be determined in each case `by the essential nature and effect of the proceeding as it appears from the entire record'") (quoting Ex parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921)).
In determining whether sovereign immunity barred the United States from intervening in the state court proceeding in this case, the district court did not specifically examine the potential effect of the state court suit on the government's fisc or its regulatory program. Rather, it cited to United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936), for the proposition that the government's intervention — as opposed to its joinder as a party defendant — is not barred by sovereign immunity. As we explained earlier, however, whether or not the government intervenes, its security interest may be threatened. The district court, then, cannot rely on Bank of New York and must directly address the potential effect of the state court suit on the United States.
We remain unsure of this suit's impact on the REA. It must be determined to what extent the potential extinguishment of the wholesale power contract and the government's security interest threatens the ability of RECC and Soyland to service their debt to the REA so as to cause a loss to the government treasury. Similarly, it is unclear whether an adverse judgment will otherwise impair the REA's regulatory mandate as might a coercive injunction. How speculative are these potential effects? These are the questions the district
The United States argues that even if it is not precluded by sovereign immunity from intervening in state court, it should not be required to do so. Invoking 28 U.S.C. § 1345, the government contends that if we deny its petition for injunction, we will be putting it to a "`Hobson's choice' of giving up a fundamental jurisdictional right, as the Government has in this case to be in federal court, `or waiving its right not to have a case proceed without it.'" Government's Brief at 26-27 (quoting Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 776 (D.C.Cir.1986)). To be sure, 28 U.S.C. § 1345 entitles the United States to initiate actions in the federal courts. But the government here is not merely asserting its right to a federal forum. It is asserting, rather, a right to an exclusive federal forum. Section 1345 does not, however, provide the government with jurisdictional carte blanche to remove any and all cases in which the government has some interest. While the government may initiate actions in the federal courts, it possesses a "jurisdictional right" to an exclusive federal forum in cases which it has not initiated only when Congress has provided one, see, e.g., 28 U.S.C. §§ 1441-1442, or when the federal courts in the exercise of their equity powers deem it appropriate to enjoin parallel state proceedings. To contend that the United States has a "right" to an exclusive federal forum in the absence of statutory removal authority begs the question whether the federal courts should invoke the Leiter doctrine in this case.
Thus, even if the district court were to deny the government's request for an injunction upon remand, it would not be detracting from the government's legitimate jurisdictional prerogative under § 1345. Nor would the United States be legally compelled to intervene in RECC's state court proceeding. At the same time, the government would not be barred from both asserting its right to a federal forum and intervening in the state court proceeding. We hold only that if intervention is an available option — if the government has an adequate remedy at law — its request for injunctive relief should be denied.
Notions of comity further support our belief that an injunction would be inappropriate should the district court find that the United States is not barred from intervening in the state court proceedings. One critical question likely to be considered in the resolution of this dispute is whether the Illinois Merger and Consolidation Act, as applied to the WIPCO-Soyland merger, conflicts with the Rural Electrification Act and must give way in accordance with the Supremacy Clause.
352 U.S. at 228-29, 77 S.Ct. at 292 (citations omitted). Thus, in Leiter, notwithstanding the presence of a "superior federal interest," the Court directed that the relevant state law question be certified to the state courts for an advisory opinion. The reasons for such deference are well established. If RECC's state court action comes to judgment first, state court interpretation of the IMCA may render adjudication of any federal constitutional question unnecessary, a result the federal courts prefer. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (deference to state court adjudications is appropriate "`in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.'") (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)).
In Bank of New York, the Court commented on the government's desire to have what it considered the more sympathetic court — the federal court — pass on the claims at issue. Chief Justice Hughes wrote that "[u]pon the state courts, equally with the courts of the Union, rests the obligation [and, by implication, capability] to guard and enforce every right secured by the Constitution and laws of the United States whenever those rights are involved in any suit or proceeding before them." Bank of New York, 296 U.S. at 479, 56 S.Ct. at 348. In this case, too, the presence of federal regulatory interests should not serve to extinguish the state courts' power to adjudicate federal claims, particularly when questions of state law interpretation are involved.
If, however, RECC's state court suit does trigger the sovereign immunity bar, then the district court should grant the government's petition for an injunction, for we believe that the government satisfies the other prongs of our injunctive relief analysis.
Irreparable Harm. The district court found that the prospect of inconsistent state and federal court judgments did not constitute irreparable harm to the REA. In the private law context, RECC and the district court are surely correct in this regard. However, we read Leiter to say that when the government cannot participate in a state court suit, the prospect of inconsistent state and federal judgments is itself sufficient threat of irreparable harm to justify the issuance of an injunction. The Court wrote that injunctive relief was appropriate in that case because the parallel state court proceedings "could not settle the basic issue in the litigation and might well cause confusion if they resulted in a judgment inconsistent with that subsequently rendered by the federal court." 352 U.S. at 227, 77 S.Ct. at 291. The state court suit could not settle the basic issue in Leiter, because the issue was the government's ownership of mineral rights, and sovereign immunity prevented plaintiffs from joining the government in their state quiet title action. See id. at 226, 77 S.Ct. at 291. RECC contends that the prospect of inconsistent judgments is not of major consequence; it notes that the government will not be bound by res judicata if it does not intervene in the state court proceeding. Again, in the private law context, RECC is surely correct that absent deleterious res judicata consequences, inconsistent judgments do not necessarily amount to irreparable harm. But Leiter stands for the proposition that when the government requests an injunction against a state court suit in which it cannot participate, the
Balance of Irreparable Harms. Here, too, we must disagree with the district court's analysis of the balance of harms factor. The court found that the potential harms to the United States and RECC were "roughly in equipoise." However, should an injunction issue against the state court suit, RECC would suffer only minimal harm. RECC would merely be required to litigate its claims in a different forum. Absent a substantive difference in the treatment RECC would receive in federal as opposed to state court, and absent a showing that RECC has already invested extraordinary resources in the state court litigation, we can identify no significant harm to RECC that would result from the issuance of an injunction. Assuming no adequate remedy at law, it follows from the fact that RECC would not be irreparably harmed by the grant of an injunction, and our conclusion that the REA would be irreparably harmed absent the issuance of an injunction, that the balance of harms in this case clearly favors the grant of injunctive relief.
Reasonable Likelihood of Success on the Merits. This prong of the injunctive relief analysis is not relevant to the consideration of motions for injunctive relief under Leiter. Normally, courts engaging in this segment of the analysis look to the merits of the substantive claims which attend a request for an injunction. In this case, however, as the district court aptly noted, the substantive claim is the request for an injunction under Leiter. That is, the government contends an injunction should issue not because the power contract might be voided in state court, but because of the very prospect of inconsistent state and federal judgments. As a result, the concept of "likelihood of success" has no meaning independent of whether the other prerequisites to the grant of injunctive relief have been satisfied.
The Public Interest. The district court suggested that this element was in "equipoise," as on the one hand, the government's interest in a federal forum is a public interest, whereas on the other, the public interest in "comity and federalism" counsels against the extinguishment of the state court proceeding. As our comments in the preceding sections amply indicate, this court is most sensitive to the federalism concerns that permeate this litigation. However, we do not believe that comity and federalism should be considered "public interest" factors that militate against the issuance of an injunction. These concerns are properly taken into account during the formulation of the legal rules that govern the award of equitable relief. For example, in shaping a rule that allows the federal courts under certain circumstances
"One case is enough," says the dissent, in response to our unwillingness to direct the district court to enjoin RECC's state court proceedings. We agree, in the abstract, that one case is surely better than two. The law, however, does not always provide for the most efficient result. Multiple judgment tangles are, to some extent, an unavoidable consequence of our system of dual judiciaries. Congress could easily eliminate the mess we face here by enacting more expansive removal statutes. Until it does, we believe there are limits to how expansively we can wield our equity powers in the name of efficiency. In the absence of congressional direction, we are hesitant to grant the government an exclusive federal forum in this case unless sovereign immunity precludes its intervention in state court.
The decision of the district court is therefore vacated and the case is remanded for further proceedings consistent with this opinion.
EASTERBROOK, Circuit Judge, concurring in part and dissenting in part.
Fallout from federal bailouts belongs in federal court. That is the judgment of Congress, reflected in the jurisdictional rules that govern litigation in the wake of bank failures. E.g., 12 U.S.C. § 1819(a) Fourth, as amended by § 209 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, 103 Stat. 216. See also 12 U.S.C. § 1441a(a)(11), (l)(1), (l)(3), § 1730(k)(1), § 1818(i)(1); FSLIC v. Ticktin, 490 U.S. 82, 109 S.Ct. 1626, 104 L.Ed.2d 73 (1989). The Western Illinois Power Cooperative was not a bank, and the Rural Electrification Administration is not the Resolution Trust Corporation, but this is a bailout all the same. The REA guaranteed substantial indebtedness of WIPCO and Rural Electric Convenience Cooperative, one of its members; the Treasury has a substantial exposure, and the REA could have taken WIPCO over. As the price of forbearance, the REA insisted that WIPCO merge with Soyland, the equivalent of the "purchase and assumption" transaction that is the staple of the banking repertory. RECC wants to use this as the lever to escape its obligation to buy power — an obligation that (with similar obligations from other customers) is the financial base of the REA's loans. The requirements contract for power is to the REA as the bank's portfolio of loans is to the Resolution Trust Corporation and the FDIC. RECC understandably thinks its best shot of cancelling its obligations lies in state court; the REA understandably wants to be in federal court. As the dispute involves public rights, we ought not apply the common law standards that make it hard for private plaintiffs to obtain injunctive relief. FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020 (7th Cir.1988); FTC v. Elders Grain, Inc., 868 F.2d 901 (7th Cir.1988); SEC v. Unifund SAL, 910 F.2d 1028 (2d Cir.1990). See also
That cases affecting the federal purse belong in federal court is the implication of the strings attached to consents that allow litigation against the United States. Usually one must sue the United States in federal court or not at all. E.g., 5 U.S.C. § 702 (waiving sovereign immunity in injunctive actions, but only in federal court); 28 U.S.C. § 2409a (allowing actions to quiet title in property in which the United States claims an interest other than a security interest, limited by 28 U.S.C. § 1402(d) to district court). When a statute allows litigation in state court, as 28 U.S.C. § 2410 does in some quiet title actions, the United States has a corresponding right to remove. See 28 U.S.C. § 1442. Indeed, there may be a general right of removal, encompassing this case, under 28 U.S.C. § 1441(c), which allows any suit that could have been filed in federal court to be removed to federal court even if only a single slice (the portion in which the United States defends its interest) is within federal jurisdiction. I therefore begin from a different perspective than do my colleagues. They observe that 28 U.S.C. § 1345, which allows the United States to sue, does not establish exclusive federal jurisdiction; I start with the fact that the Congress routinely assures the United States a federal forum when it allows or requires the government to litigate. There are exceptions, e.g., 43 U.S.C. § 666, the basis of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), but the norm supplies the perspective from which to assess the government's request for an injunction against the state litigation. When the case affects the fisc, "[i]t is altogether fitting that the sovereign should insist that such issues be decided by its own courts." Henry J. Friendly, Federal Jurisdiction: A General View 10 (1973).
If RECC's suit in state court were nothing but a mundane claim under the corporate law of Illinois, and the United States a curious observer, then the argument for an injunction would be weak. To gather the whole dispute into federal court would be to let the tail wag the dog at the expense of federalism. It might lead to an advisory opinion, avoidable if the state court construes state law in a particular way. From such a perspective it would be important for the district court to decide whether the REA plays a lead or a bit part in this imbroglio. I am satisfied that we know the answer to this question. The REA, thus the Treasury, is the star of this show.
Soyland and WIPCO merged at federal insistence. The REA demanded the merger to improve its chance of collecting a substantial debt. Soyland, WIPCO, and RECC all owe their size and scope (if not their existence) to federal loans and guarantees. Requirements contracts for power lie at the core of the program under the Rural Electrification Act. See Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983); Wabash Valley Power Association, Inc. v. REA, 903 F.2d 445 (7th Cir.1990). Electric cooperatives have little capital other than what the federal government furnishes (directly or through guarantees of private loans). Repayment depends on a steady income stream from the sale of electricity. Before it will make or guarantee a loan, the REA insists that the co-op have in hand contracts for the sale of power. Buyers promise to take their requirements from the REA's borrower, which prevents them from switching sources and leaving the borrower without means to repay. These contracts are subject to the REA's approval and cannot be cancelled without its consent. The buyers under the contracts also may be co-ops that borrow from the REA and so are twice bound: once as the customer of a G & T co-op, and once as borrower in their own right. Although it is conventional to say that the REA has a security interest in the contracts, it is more accurate to call the REA a third-party beneficiary, possessing the rights of a contracting party. It does not stand to collect
Involvement of this character means that federal rather than state law governs the validity of the contract. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). If a bank fails and the FDIC or the RTC steps in, federal replaces state law; defenses available under state law vanish. E.g., Langley v. FDIC, 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 456, 62 S.Ct. 676, 679, 86 L.Ed. 956 (1942). Any suggestion that the domain of federal law is limited to obligations running directly to the United States was squelched in United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-27, 99 S.Ct. 1448, 1457-58, 59 L.Ed.2d 711 (1979), which applied federal law to determine the priority among competing security interests in personal property, when a federal agency held one of the claims. It explained: "federal law governs questions involving the rights of the United States arising under nationwide federal programs." Id. at 726, 99 S.Ct. at 1457. That description fits our case neatly. Even the strongest supporters of federalism believe that courts should use national law to determine the rights and obligations of the national government. See Henry J. Friendly, In Praise of Erie — and of the New Federal Common Law, in Benchmarks 155, 178-85 (1967).
Kimbell reminded us that federal common law tracks state law, if the state law does not discriminate against federal interests. 440 U.S. at 727-33, 99 S.Ct. at 1457-61. Perhaps, then, Illinois law will govern this case indirectly. It will do this, however, only after a judge decides that uniform application of its principles will not undercut federal interests. I doubt that Illinois law could satisfy this standard if it creates an entitlement to break the requirements contract that was an essential condition of the federal loans, as opposed to creating only an entitlement to withdraw as a member of the merged entity. Section 1345 allows the United States to obtain from a federal court a decision on this question of federal law.
Whether or not state law applies, my colleagues' focus on the ability of the United States to intervene in the state case has something of the hypothetical about it. Even if it can intervene, it won't. Surely the REA has learned from Wabash Valley that if it intervenes it will be bound by the judgment, forfeiting any entitlement to the protection of federal court. 903 F.2d at 455. State judges, who must run for reelection, cannot fail to consider (if only subconsciously) that victory for RECC will mean lower electric rates locally, at some expense to taxpayers in 49 other states. Having been stung in Wabash Valley, the REA will ask the federal judge to engage in a race with the state judge, seeing who can careen to judgment faster. If Judge Mills disdains the contest, the REA will sit tight, knowing that nothing the state court does can preclude it. If RECC prevails in state court, the REA will ask Judge Mills for a second opinion. Federal oversight of state court judgments in this fashion poses more risks to values of federalism than does an initial federal decision. Worse still, the federal decision could benefit only the REA, for under the Rooker-Feldman doctrine and 28 U.S.C. § 1738 the federal court cannot alter the rights of the private parties. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The state's decision will bind Soyland, so a state-federal series creates the possibility of inconsistency that only the Supreme Court could resolve.
Is this risk necessary? Is the potential confusion essential? My colleagues say that the REA is entitled to an injunction against the state proceedings if and only if sovereign immunity precludes its intervention in state court. Whether sovereign immunity applies is a nice question; the majority does a good deal of massaging of the language in cases such as United States v. Alabama, 313 U.S. 274, 282, 61 S.Ct. 1011,
Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226-28, 77 S.Ct. 287, 291-92, 1 L.Ed.2d 267 (1957), provides ample support for this conclusion. Limiting Leiter to situations in which the United States cannot intervene in the state case is artificial. The United States argued in Leiter that sovereign immunity blocked intervention as a defendant but conceded that it could have filed its own suit: "The United States, of course, could have filed a separate and independent action, as plaintiff, in the Louisiana state court for Plaquemines Parish to have its title determined, but it did not choose to do this". Brief for the United States at 14-15, Leiter Minerals, Inc. v. United States, No. 26, October Term, 1956. A new suit could have been consolidated with the pending litigation, a maneuver no different in substance from intervention. Our superiors did not think the ease with which the United States could have put the dispute before the state court mattered. Why then should it matter to us? The Court discussed the possibility that the state action could be revamped even in the absence of the United States to avoid sovereign immunity but remarked: "nevertheless such proceedings could not settle the basic issue in the litigation and might well cause confusion if they resulted in a judgment inconsistent with that subsequently rendered by the federal court." 352 U.S. at 227, 77 S.Ct. at 291.
Leiter held the United States entitled to an injunction consolidating the litigation in federal court, where all parties could contest the issues. In Colorado River, when all parties were present in state court, the Supreme Court held that the litigation should continue there. There is a theme: one case is enough. Everyone is before a federal court, the tribunal most appropriate to the questions presented. So although I agree with the majority that the order denying injunctive relief cannot stand, I disagree with the terms of the remand. Instead of telling the district judge to determine whether sovereign immunity prevents the United States from intervening in state court — a question we could answer ourselves if it were relevant — we should tell the district court to issue the injunction and get on with the merits. It will have to decide the merits sooner or later and should do so sooner, avoiding wasteful duplication and eliminating all possibility of a clash between state and federal judgments.
We find the government's inability to represent its interests in state court to be of singular importance. Sovereign immunity considerations aside, when the government's regulatory interests are liable to be fettered by a judgment to which it cannot be a party, unfairness concerns are at their greatest. When, however, the government can represent its interests in a state forum competent to adjudicate its claims, we are hesitant to honor its request for removal absent statutory authorization. The government may choose to file independently in federal court, but if it does so, the resulting inconvenience of multiple judgments is of its own doing, and in any case, of a magnitude considerably less great than that resulting from being shut out of the state proceedings altogether.