465 F.2d 586 (D.C. Cir. 1972), 71-1367, First Nat. Bank of Fairbanks v. Camp

Docket Nº:71-1367.
Citation:465 F.2d 586
Party Name:FIRST NATIONAL BANK OF FAIR-BANKS, Appellant, v. William B. CAMP, Comptroller of the Currency of the United States, et al.
Case Date:June 07, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 586

465 F.2d 586 (D.C. Cir. 1972)

FIRST NATIONAL BANK OF FAIR-BANKS, Appellant,

v.

William B. CAMP, Comptroller of the Currency of the United States, et al.

No. 71-1367.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1972

         Argued Sept. 13, 1971.

         Rehearing Denied July 12, 1972.

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[Copyrighted Material Omitted]

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          Mr. Max Barash, Washington, D. C., for appellant. Mr. Robert L. McCarty, Washington, D. C., also entered an appearance for appellant.

         Mr. Michael H. Stein, Atty., Dept. of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Walter H. Fleischer, Atty., Dept. of Justice, were on the brief, for appellee Camp. Messrs. John A. Terry, James F. Rutherford, Asst. U. S. Attys., Morton Hollander, Ronald R. Glancz, Attys., Dept. of Justice, and John V. Austin, Atty., Office of the Comptroller of the Currency, also entered appearances for appellee Camp.

         Mr. John D. Hawke, Jr., Washington, D. C., with whom Mr. Irvin B. Nathan, Washington, D. C., was on the brief, for appellee First National Bank of Anchorage.

         Before McGOWAN and MacKINNON, Circuit Judges, and GOURLEY, [*] Senior District Judge for the Western District of Pennsylvania.

         MacKINNON, Circuit Judge:

         ) to establish a branch office in Fairbanks, Alaska. The case was submitted to the District Court on cross-motions for summary judgment, and the motions of the defendant Comptroller and intervenor FNB Anchorage were granted. We affirm the judgment of the District Court, 326 F.Supp. 541.

         I. BACKGROUND AND FACTS

          FNB Anchorage applied to the Comptroller on September 17, 1969 for permission to establish a branch office in the downtown business district of Fairbanks, Alaska. Various supporting data accompanied the application. FNB Anchorage summarized its reasons for applying for the branch as follows:

It is mandatory for this bank to follow the development of its customers

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in the ever-expanding economy of Alaska, greatly magnified as a result of the great oil activity on the North Slope. In order to do this, this branch must be established.

         JA 16. 1 All interested parties were notified of the application and invited to comment; a field investigation was made by a national bank examiner, who recommended approval of the application. Eventually the application was opposed by the State of Alaska, Division of Banking and Securities, by several Fairbanks banks and by the Alaska Association of State Chartered Banks (the Association). The Association and the Alaska State Bank requested the Comptroller to conduct a hearing on the application in order to have "a full opportunity to elaborate upon the reasons for their opposition." 2 JA 107. This request was granted, and the parties were notified of the date set for the hearing and were furnished a memorandum of procedures to be followed during the hearing. 3

         The hearing was held in Portland, Oregon, on March 31, 1970 before the Regional Comptroller, a Regional Economist,

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and a Senior Attorney from the Comptroller's office in Washington, D.C. The applicant FNB Anchorage was represented by its President and by counsel. Appearing to protest the application were the President of the Alaska State Bank (speaking for both his bank and the Alaska Association of State Chartered Banks) and state Banking Director Robertson (accompanied by one of his Bank Examiners), both represented by counsel. The hearing was directed by the Senior Attorney, Mr. Polking who opened the proceedings by reviewing the procedures set forth in the Regional Comptroller's memorandum announcing the hearing. 4

         Mr. Polking, as senior attorney for the Comptroller, then entered into the hearing record the entire public file, including FNB Anchorage's application with its supporting exhibits and documents (excepting only material of a confidential nature, such as customer lists), and all information and documents submitted by the protestants. Tr. 6-7. FNB Anchorage chose to make only a brief opening statement through counsel, and rested on its application and supporting documents. Though the President of FNB Anchorage was present at the hearing, no request was made by any of the participants to examine or otherwise hear testimony from him, and no objections were raised at the hearing to the manner in which FNB Anchorage presented its case. The protestants then presented testimony from eight separate witnesses and introduced documentary evidence in addition to that which had previously been submitted to the Comptroller and included in the public file.

         Following the hearing the panel divided in its recommendations on the application. Mr. Mattersdorf, the economist member, recommended disapproval because of the "overbanked" condition of Fairbanks and the questionable economic outlook for the central-Alaska area. AF 88-89. Mr. Polking recommended approval in the belief that the banking market in Fairbanks could support entry by FNB Anchorage without threatening the solvency or profitability of the existing banks, and that FNB Anchorage should be permitted to follow its customers into the Fairbanks area. AF 80. Regional Comptroller Leaf cast the deciding vote against approval, but the closeness of his decision is reflected by the fact that his recommendation adopted all four of the conclusions found determinative by the other two members of the panel. AF 72. His recommendation to disapprove seemed almost inconsistent with his analysis of the arguments.

         Disagreement continued after the application was forwarded to the Comptroller's office in Washington, D. C. There the Director of the Bank Organization Division recommended approval; two Deputy Comptrollers recommended rejection; and on June 26, 1970 the Comptroller rejected the application. By letter of June 30, 1970 FNB Anchorage was informed that their application had been denied. AF 55.

         On September 4, 1970 FNB Anchorage requested reconsideration of the decision on the basis of the merits of the original application. No new grounds nor changed circumstances were alleged, but the argument was again advanced that FNB Anchorage "can never truly be competitive with the National Bank of Alaska [who] can continue to take customers away from this bank as long as we are denied serving the Fairbanks area. . . ." JA 12, AF 47.

         Additional comments were then solicited from those who had opposed the application at the March 31 hearing. The State Banking Director, Alaska State Bank, and FNB Fairbanks filed protests that argued, in essence, that the only significant change occurring since the initial rejection of the FNB Anchorage application was further deterioration

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in the economic prospects for the Fairbanks area.

         A new Regional Comptroller, Mr. Selby, wrote an extensive letter to the Comptroller on October 13, 1970 summarizing his view of the relevant factors and recommending approval of the application. JA 151-55, AF 15-21. He, too, noted that Fairbanks seemed to have "an adequate number of banking offices, " but he was more impressed by the facts that 83% of the commercial bank deposits in the area were held by the two Fairbanks-based national banks, that a nine-month-old branch of the other major Anchorage-based national bank had been successfully accepted in Fairbanks without any perceptible detrimental effect on the existing Fairbanks banks, and that applicant had a valid claim to protect existing customers. Mr. Selby concluded that these competitive factors weighed most heavily in favor of approval.

         ] in defense of its application to enter Fairbanks . . . ." JA 157-58, AF 12-13.

         Mr. Selby's analysis was favorably received in the Office of the Comptroller, convincing the two Deputy Comptrollers who had previously recommended against approval to change their minds. The Director, Bank Organization Division, again cast his vote for approval, which made the staff recommendation unanimous. 5 Comptroller Camp, on November 6, joined by approving the application, JA 159-60, AF 10-11, and FNB Anchorage and the protesting parties were notified of this approval by letters dated November 10 and 12, 1970. AF 7-9.

         By separate correspondence on December 1, FNB Anchorage was reminded that approval was contingent upon using a "distinctive designation" to prevent the confusion inevitable from having two "First National Banks" serving the same area. FNB Anchorage replied on December 18 with a proposal to use and emphasize the name "Interior City Branch" in connection with their Fairbanks operation. The Comptroller approved this designation on December 23, 1970, JA 161, 164-65, AF 1-2, 5.

         This action was filed by FNB Fairbanks against the Comptroller on December 18, 1970 seeking review of the Comptroller's actions and a declaratory judgment that his approval of the application was "arbitrary, capricious and unreasonable and an abuse of his discretion" and that the approval was therefore "null and void and of no effect." JA 15. FNB Anchorage was granted leave to intervene as a defendant, and both defendants moved to dismiss or in the alternative for summary judgment; FNB Fairbanks filed a cross-motion for summary judgment. The District Court granted defendants' motions for summary judgment and this appeal followed. We affirm the judgment of the District Court.

         II. THE ROLE OF STATE LAW IN NATIONAL BANK BRANCH APPLICATIONS

         The appellant, FNB Fairbanks, urges as its primary grounds for reversal that the Comptroller acted arbitrarily and in abuse of his discretion by failing to follow the provisions...

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