CENTRAL S. & LA OF CHARITON, IOWA v. Federal Home Loan B. Bd.

Citation293 F. Supp. 617
Decision Date20 November 1968
Docket Number8-2204-C-1,8-2179-C-1.,Civ. No. 8-2178-C-1
PartiesCENTRAL SAVINGS AND LOAN ASSOCIATION OF CHARITON, IOWA et al., Plaintiffs, v. FEDERAL HOME LOAN BANK BOARD et al., Defendants. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, CARROLL, IOWA, Plaintiff, v. FEDERAL HOME LOAN BANK BOARD et al., Defendants. CENTRAL SAVINGS AND LOAN ASSOCIATION OF CHARITON, IOWA et al., Plaintiffs, v. UNITED FEDERAL SAVINGS AND LOAN ASSOCIATION OF DES MOINES, IOWA, Defendant.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

A. Arthur Davis, Donald A. Wine, and John D. Shors, Des Moines, Iowa, for plaintiffs.

Shirley A. Webster, Winterset, Iowa, for plaintiff Farmers and Merchants State Bank.

R. H. Werner, per se, Creston, Iowa, for plaintiff R. H. Werner.

Walter Ward Reynoldson, Osceola, Iowa, for plaintiff Clark County State Bank.

G. Arthur Minnich, Jr., Carroll, Iowa, for plaintiff First Federal Savings and Loan Assn.

Alan Jay Moscov, Gen. Counsel, Max Wilfand, Deputy Gen. Counsel, Paul E. McGraw, Assoc. Gen. Counsel, and Daniel J. Goldberg, Asst. Gen. Counsel, Office of Gen. Counsel, Federal Home Loan Bank Bd., Washington, D. C., for defendants, Home Loan Bank Bd.

Joseph A. Muldoon, Jr., Washington, D. C., and Henry Grant, Harvey Bogenrief, Des Moines, Iowa, and Pierson, Ball & Dowd, Washington, D. C., for defendant United Federal Savings and Loan Assn. of Des Moines, Iowa.

MEMORANDUM AND ORDER

STEPHENSON, Chief Judge.

This matter is now before the Court on the motions of the defendants to dismiss for failure to state a claim upon which relief can be granted, and for other reasons. The three actions herein have been consolidated by order of this Court dated July 12, 1968, and the motions of all defendants will be considered together.

Civil Nos. 8-2178-C-1 and 8-2204-C-1 are actions for declaratory and mandatory injunctive relief filed by eleven plaintiffs (five state chartered commercial banks, a director of one of these banks, two federal savings and loan associations, a director of another federal savings and loan association, and two state chartered savings and loan associations) against the Federal Home Loan Bank Board (Board), and the individual members of the Board. The Board is an independent agency of the United States, which is responsible, among other things, under the statutory power conferred upon it by section 5(a) of the Home Owners' Loan Act of 1933, as amended, 12 U.S.C.A. § 1464(a), (Act), for the organization, supervision and regulation of federal savings and loan associations.

The original complaints sought: (1) judicial review of the Findings, Opinion and Order of the Board, dated February 27, 1968, which both authorized the establishment and operation of the mobile facility by United Federal Savings and Loan Association of Des Moines, Des Moines, Iowa (United Federal), and denied a petition by certain of the plaintiffs for the repeal of the Board regulation providing for mobile facilities by federal savings and loan associations, section 545.14-4 of The Rules and Regulations for the Federal Savings and Loan System (12 C.F.R. 545.14-4), prescribed by the Board under the Act (12 U.S.C. § 1461 et seq.); (2) a judgment that the Board's mobile facility regulation is illegal, invalid and void, and the issuance of a mandatory injunction directing the Board and its members to rescind such regulation; and (3) a declaration that the Board order authorizing a mobile facility for United Federal is illegal, invalid and void, and the issuance of a mandatory injunction directing the Board and its members to rescind such order.

Civil No. 8-2204-C-1 was originated by a complaint filed on April 10, 1968, in the United States District Court for the Northern District of Iowa. Upon motion of all parties, that case was transferred to this Court by order dated June 4, 1968. Civil No. 8-2179-C-1 is identical to Civil No. 8-2178-C-1, except that United Federal is the named defendant, and an additional count seeks injunctive relief against United Federal under the antitrust laws.

On May 22, 1968, the plaintiffs in Civil Nos. 8-2178-C-1 and 8-2204-C-1 amended their complaint to add, among other things, a claim for money damages for injuries to them caused by the refusal of the Board to stay implementation of its order authorizing the establishment and operation of a mobile facility by United Federal.

Defendants' motions to dismiss allege that: (1) the plaintiffs have failed to state any claim upon which relief may be granted; (2) the Court lacks jurisdiction of all of the alleged causes of action asserted against the Board by the plaintiff banks and the directors thereof, and by the plaintiff state chartered savings and loan associations, because Congress has not given its consent to suit against the Board, eo nomine, by any person or entity other than a federally chartered savings and loan association or an officer or director thereof; (3) the plaintiff banks and the directors thereof lack standing to sue the Board or its members; and (4) the Court lacks jurisdiction of the causes of action of all the plaintiffs with respect to claims for money damages against the Board or its members.

A hearing was held on defendants' motions August 19-20, 1968, at which time affidavits and other matters outside the pleadings were presented to and received by the Court. In addition the parties were granted time to, and did, file additional affidavits. Accordingly the motions to dismiss will be treated as motions for summary judgment. Fed.R.Civ. P. 12(b).

Section 545.14-4 of The Rules and Regulations for the Federal Savings and Loan System ("section 545.14-4") provides for the establishment and operation of mobile facilities by federal savings and loan associations. This regulation, as amended, became effective on July 24, 1967.

A mobile facility, in essence, is a self-propelled or vehicular-towed facility which is driven to specified locations, approved in advance by the Board, for the purpose of extending savings and loan services to communities which are not otherwise provided with such services locally. Section 545.14-4 specifies the requirements as to each proposed location for the mobile facility, and sets forth standards which the mobile operations must meet. Each proposed location must be within the state in which the applicant's home office is located, within the applicant's regular lending area, and, at the time of the filing of the application, must be at least ten miles from the location of the home or any branch office of all other institutions with accounts insured by the Federal Savings and Loan Insurance Corporation. An applicant must agree to operate its mobile facility at two or more qualified locations, and with respect to each location such facility must be open for business on the same day or days (not to exceed two days) of each week, aggregating a total of not less than four hours per day. The regulation precludes the mobile equipment from remaining at any location while such facility is not open for business, except that the equipment may be placed at any approved location on the night before and the night following a day on which the facility is open for business. Subject to the foregoing restrictions, the regulation permits the days and hours for business at each approved location to be set by the applicant's board of directors.

Assuming compliance with the eligibility requirements and regulatory standards of section 545.14-4, the Board is required to determine, as to each proposed location, that there is a "need" for such mobile facility, and that a full-time office is not feasible there. Once approved, any regular savings and loan business of the applicant authorized by its board of directors may be conducted at each approved location except for the approval of loans other than loans to borrowers on the security of their savings.

By application dated November 14, 1966, United Federal sought permission to establish and operate a mobile facility at eleven locations within the State of Iowa. A public hearing was held in Washington, D. C., May 8-22, 1967. The plaintiffs in the present litigation, along with other protestants, appeared at the hearing through counsel in opposition to the application of United Federal. All parties to the proceeding were given an opportunity to present evidence, state their views and to file briefs in support of their respective positions.

Certain of the protestants to the application of United Federal, including many of the plaintiffs in the present case, petitioned the Board to repeal section 545.14-4. The Board permitted these protestants to file briefs in support of their petition and granted oral argument on said petition.

Upon consideration of the matter, the Board issued its Findings, Opinion and Order, dated February 27, 1968, denying the petition to repeal section 545.14-4, and granting permission for United Federal to establish and operate a mobile facility for a period of three years at three of the eleven locations sought. The Board found that there was a "need" for the mobile facility at the three approved locations and that it was not feasible for United Federal to establish a full-time office in these communities. The Board determined that there was no "need" for a mobile facility in seven of the communities sought and therefore denied permission for the establishment of a mobile facility therein. The Board also found that it was feasible to establish a full-time office in the final community involved and denied United Federal's application on that basis.

The Board raises the issue of standing to sue as to certain of the plaintiffs. It is well settled that the United States may not be sued without its consent, and that a suit against an agency of the Government is a suit against the United States. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952). Consent to suit against the United States may be...

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