Guaranty Savings & Loan Ass'n v. Federal Home Loan Bank Bd.

Decision Date02 August 1971
Docket NumberCiv. A. No. 732-71.
Citation330 F. Supp. 470
PartiesGUARANTY SAVINGS AND LOAN ASSOCIATION, Plaintiff, v. The FEDERAL HOME LOAN BANK BOARD et al., Defendants.
CourtU.S. District Court — District of Columbia

William S. D'Amico, Pierson, Ball & Dowd, Washington, D. C., for plaintiff.

Paul E. McGraw, Associate Gen. Counsel, Daniel J. Goldberg, Asst. Gen. Counsel, Federal Home Loan Bank Bd., Washington, D. C., for defendants.

MEMORANDUM OPINION

SIRICA, Chief Judge.

Plaintiff, a savings and loan association headquartered in Milwaukee, Wisconsin, brings this action for the entry of a preliminary injunction to restrain the defendant Federal Home Loan Bank Board (FHLBB) from approving the exact location of the branch of the Milwaukee Federal Savings and Loan Association, Milwaukee, Wisconsin, pursuant to the Federal Home Loan Bank Board Resolution No. 71-259. The plaintiff argues that the FHLBB had no proper and reasonable basis to approve Milwaukee Federal's application, because the administrative record underlying the approval and the Resolution were products of arbitrary and capricious acts of FHLBB. The defendants contend that the plaintiff has failed to meet the tests which would warrant the granting of any type of preliminary relief, and therefore asks that the Court deny the plaintiff's request for a preliminary injunction.

On April 8, 1970, the plaintiff, a state-chartered savings and loan association, filed an application with the Wisconsin Savings and Loan Commissioner for permission to establish a branch office in Greenfield, Wisconsin. This application was approved on July 30, 1970, and plaintiff opened the branch for business on March 29, 1971.

On October 5, 1970, Milwaukee Federal Savings and Loan Association, a federally-chartered association, filed an application for permission to establish a branch office located approximately one block away from the plaintiff's branch. The FHLBB notified plaintiff and all other competing institutions of the filing of Milwaukee Federal's branch application and it commenced a field investigation on the application. It should be noted that the records indicate that currently there are no other competing institutions within two miles of plaintiff's branch office in Greenfield, Wisconsin. Plaintiff was the sole objector to the approval of the application.

On November 20, 1970, the plaintiff submitted its reasons why it objected to Milwaukee Federal's branch application, and it requested that a public hearing be held only if the Board decided to approve Milwaukee's application. Oral argument on the application was held on January 5, 1971, before the FHLBB's Supervisor Agent. The argument was conducted according to FHLBB regulation, 12 C.F.R. 545.14(h) (1970). Counsel for the plaintiff appeared at the argument and presented plaintiff's case.

On March 18, 1971, the FHLBB approved Milwaukee Federal's branch application by Resolution No. 71-259, stating that the application met the regulatory considerations contained in 12 C.F. R. 545.14(c) (1970).

On June 18, 1971, the plaintiff applied for the preliminary injunction to restrain the Board from approving the location of Milwaukee Federal's branch which is now before this Court.

A plaintiff must satisfy four conditions in order for a preliminary injunction prohibiting or staying the establishment of a branch office approved by a banking or savings and loan regulatory agency to issue. He must show:

(1) That the action of the agency in approving the branch application was arbitrary, capricious and an abuse of discretion and therefore that plaintiff is likely to prevail upon the merits;

(2) That plaintiff will be irreparably injured unless the stay is granted;

(3) That no substantial harm would result to the branch applicant;

(4) That the public interest would be benefitted by the issuance of an injunction.

First-Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir. 1970). See also Virginia Petroleum Job. Ass'n. v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958).

The Court finds that plaintiff is not likely to prevail on the merits. Essentially, plaintiff argues that it was denied procedural due process because the FHLBB did not hold a full evidentiary public hearing in connection with its approval of Milwaukee Federal's branch application, and because the FHLBB did not make formal findings of fact or render a written opinion explaining its decision. After examining the FHLBB's regulations on branch application, the Court notes that there is no provision for a formal hearing; however, 12 C.F.R. 545.14(h) (1970) does provide for "oral argument" by a protestant to the application. The Court notes that this proceeding was held, and that the plaintiff, represented by its counsel, did appear and argue its opposition to the branch application.

The weight of authority in this circuit and several other circuits is to the effect that "due process" considerations do not require the FHLBB or the Comptroller of the Currency to hold a hearing on a branch application, even if the application is contested by a competing institution. See First National Bank of McKeesport v. First Federal Savings & Loan Ass'n of Homestead, 96 U.S.App.D.C. 194, 225 F.2d 33 (1955); Federal Home Loan Bank Board v. Rowe, 109 U.S.App.D.C. 140, 284 F.2d 274 (1960); Bridgeport Federal Savings & Loan Ass'n. v. Federal Home Loan Bank Board, 199 F.Supp. 410 (E.D.Pa. 1961), affirmed, 307 F.2d 580 (3rd Cir. 1962), cert. denied, 371 U.S. 950, 83 S. Ct. 504, 9 L.Ed.2d 499 (1963); Central Savings & Loan Ass'n of Chariton, Iowa v. Federal Home Loan Bank Board, 293 F.Supp. 617 (S.D.Iowa 1968), affirmed, 422 F.2d 504 (8th Cir. 1970).

The plaintiff urges that Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), requires the Court to remand to FHLBB for further explanation of its decision on the application. The Court does not agree that formal findings were required in the instant case. The record before the Court, including the transcript of the oral argument held January 5, 1971, the branch application of Milwaukee Federal, and other exhibits, indicates that substantial consideration was given to the branch application and the protest by the plaintiff. Furthermore, the Court believes that Overton Park is distinguishable. In that case the Supreme Court determined that formal findings were not required of the Secretary of Transportation concerning his approval of a six-lane interstate highway through a Memphis, Tennessee public park. However, the Court found that in that case the judicial review based solely on litigation affidavits was inadequate. The Court then pointed out:

A threshold question — whether petitioners are entitled to any judicial review — is easily answered.
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  • CORNING S & L ASS'N v. FED. HOME LOAN BK. BD., LR-C-83-69.
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    ...the residents of the developing service area, ... from an additional savings and loan facility." See, also, Guaranty Savings & Loan Ass'n v. FHLBB, 330 F.Supp. 470, 473 (D.D.C. 1971), wherein the Court, in sustaining the Board's approval of a branch application, stated "... the Court believ......
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    ...Bank Board, 3 Cir., 307 F.2d 580; First National Bank of Smithfield v. Saxon, 4 Cir., 352 F.2d 267; Guaranty Savings & Loan Assn. v. Federal Home Loan Bank Board, D.C., 330 F.Supp. 470; First Nat. Bank of Whippany v. Trust Co. of Morris County, 76 N.J.Super. 1, 183 A.2d 706; First National ......
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