320 F.3d 59 (1st Cir. 2003), 02-1738, Bowler v. Hawke

Docket Nº:02-1738.
Citation:320 F.3d 59
Party Name:Julianne M. BOWLER, in her capacity as Commissioner of Insurance of the Commonwealth of Massachusetts; Thomas J. Curry, in his capacity as Commissioner of Banks of the Commonwealth of Massachusetts; Commonwealth of Massachusetts, Petitioners, v. John D. HAWKE, in his capacity as Comptroller of the Currency of the United States; The Office of the Co
Case Date:February 13, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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320 F.3d 59 (1st Cir. 2003)

Julianne M. BOWLER, in her capacity as Commissioner of Insurance of the Commonwealth of Massachusetts; Thomas J. Curry, in his capacity as Commissioner of Banks of the Commonwealth of Massachusetts; Commonwealth of Massachusetts, Petitioners,

v.

John D. HAWKE, in his capacity as Comptroller of the Currency of the United States; The Office of the Comptroller of the Currency, an Agency of the United States of America, Respondents.

No. 02-1738.

United States Court of Appeals, First Circuit

February 13, 2003

Heard Aug. 2, 2002.

Page 60

Thomas A. Barnico, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for the petitioners.

John B. Williams, Scott A. Sinder, and Christy Hallam DeSanctis, and Collier, Shannon, Scott, PLLC on brief for amici curiae the Independent Insurance Agents of America, Inc., and the National Association of Professional Insurance Agents, Inc.

John W. Bauer, Andrew J. Beal, Eric A. Smith and Rackemann, Sawyer & Brewster, on brief for amicus curiae the National Association of Insurance Commissioners.

Douglas B. Jordan, with whom Julie L. Williams, Daniel P. Stipano, and L. Robert Griffin, were on brief for the respondents.

Brenda R. Sharton, Collin O'Connor Udell, and Goodwin Procter, LLP on brief for amici curiae the Massachusetts Bankers Association, American Bankers Association, American Bankers Insurance Association, America's Community Bankers, and Independent Community Bankers of America.

Kenneth F. Ehrlich, John J. O'Connor, and Peabody & Arnold, LLP, on brief for amicus curiae Banknorth, N.A.

Before TORRUELLA, Circuit Judge, JOHN R. GIBSON,[*] Senior Circuit Judge, and HOWARD, Circuit Judge

HOWARD, Circuit Judge.

The Commonwealth of Massachusetts and its Commissioners of Insurance and Banks (collectively, "Massachusetts") have filed a petition asking that we "vacate, set aside, or otherwise annul" an opinion of the Office of the Comptroller of the Currency ("OCC"). Massachusetts objects to the OCC's determination that the Gramm-Leach-Bliley Act of 1999 ("GLBA"),

Pub.L. No. 106-102, 113 Stat. 1338 (1999), preempts three provisions of a Massachusetts consumer protection statute and their corresponding regulations.

In filing the petition with this Court, Massachusetts relies on GLBA § 304(a), 15 U.S.C. § 6714(a), which provides:

In the case of a regulatory conflict between a State insurance regulator and a Federal regulator regarding insurance issues, including whether a State law, rule, regulation, order, or interpretation regarding any insurance sales or solicitation activity is properly treated as preempted under Federal law, the Federal or State regulator may seek expedited judicial review of such determination by the United States Court of Appeals for the circuit in which the State is located or in the United States Court of Appeals for the District of Columbia Circuit by filing a petition for review in such court.

Because the OCC's determination was set forth in an informal opinion letter which does not appear to carry the force of law, presage imminent coercive conduct, or seemingly otherwise bind Massachusetts, we became concerned that the petition seeks an advisory opinion and thus fails to describe a "regulatory conflict" amounting to a case or controversy. Accordingly, we solicited supplemental briefs addressing our subject matter jurisdiction. See, e.g., Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (recognizing that the federal judicial power conferred by U.S. Const, art. III, § 2, cl. 1, extends only to cases and controversies and that a court must on its own motion raise the issue if doubtful about its power

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to adjudicate a matter). Having considered the parties' submissions, we conclude that the OCC opinion letter does not create a justiciable "regulatory conflict" within the meaning of the GLBA. We therefore dismiss the petition.

The facts relevant to our jurisdictional...

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