Bank of Commerce of Laredo v. City Nat. Bank of Laredo

• Decision Date: 25 October 1973
• Docket Number: No. 73-2217 Summary Calendar.,73-2217 Summary Calendar.
• Parties: BANK OF COMMERCE OF LAREDO, Plaintiff-Appellant, v. CITY NATIONAL BANK OF LAREDO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 284 (1973)

BANK OF COMMERCE OF LAREDO, Plaintiff-Appellant, v. CITY NATIONAL BANK OF LAREDO et al., Defendants-Appellees.

No. 73-2217 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 13, 1973.

Rehearing Denied October 25, 1973.

J. G. Hornberger, Laredo, Tex., for plaintiff-appellant.

Horace C. Hall, III, Laredo, Tex., for City Nat'l Bank, Hall, Sanchez, Magnon, Guerra & Zuniga.

George P. Kazen, Laredo, Tex., for Laredo Nat'l Bank, Mandel & Jacobs.

Anthony J. P. Farris, U. S. Atty., William L. Bowers, Jr., Asst. U. S. Atty., Houston, Tex., for Doman & Camp.

Morton Hollander, Ronald R. Glancz, Dept. of Justice, Civil Div., Washington, D. C., for Comptroller of Currency.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The Bank of Commerce of Laredo appeals from the district court's refusal to set aside the grant of a national bank charter by the Comptroller of the Currency of the United States to the City National Bank of Laredo. The Bank of Commerce contends that the trial court erred in denying it access to the discovery process, in refusing to order the Comptroller to explain the reasons for his approval of the charter application, and in granting defendant's motion for summary judgment. We affirm.

City National was organized as an affiliate of the Laredo National Bank, a competitor of the Bank of Commerce, which vigorously opposed the application from the beginning. Pursuant to City National's application, a national bank examiner from the Comptroller's office conducted a field investigation of the proposed new bank, its management and organizers, gathered and confirmed statistical data, talked to personnel from the various competitor banks, and interviewed businessmen in the proposed service area. Subsequently, he tendered written findings, including a comprehensive economic profile of the service area and its prospects, and recommended that the application be approved. At appellant's request, the Regional Comptroller of the Currency held a public hearing on the application, and following an examination of additional economic reports and other information proffered by the interested parties, he likewise recommended approval, furnishing written reasons for his action. Thereafter, the Comptroller and his staff reviewed the entire record and ultimately granted City National a certificate of authority to commence banking.

After these efforts in the administrative proceedings had proved unavailing, Bank of Commerce turned to the court below seeking a declaratory judgment that the Comptroller's approval of the charter application was unlawful, an injunction prohibiting City National and its organizers from participating in the banking business pursuant to the charter, and a trial de novo on the merits of City National's charter application. From fourteen grounds of unlawfulness alleged in plaintiff's wide ranging complaint, the district court distilled three general bases for the allegation that the Comptroller's action was arbitrary and capricious: (1) the procedure employed by the Comptroller was illegal; (2) his approval of the charter application circumvented the Texas prohibition against branch banking; and (3) the grant of a bank charter to City National violated the antitrust laws of the United States. After dismissing the complaint against Laredo National Bank and its executive officers, who had participated in the organization of City National, and against Michael Doman, The Regional Administrator of National Banks, for failure to state a claim upon which relief could be granted, that court denied appellant's request for a trial de novo and granted summary judgment for the remaining defendants, City National Bank, its organizers, and William B. Camp, Comptroller of the Currency. Neither ground (2) or (3) is urged by the Bank of Commerce on this appeal.

The Bank of Commerce alleges 37 specific arbitrary and capricious acts by the Comptroller and his staff. Furthermore, appellant complains that the trial court wrongfully denied its motion to depose and serve interrogatories on the Comptroller, several members of his staff, the organizers of City National, and the officers of Laredo National Bank who testified in favor of City National's application. Finally, in an attempt to tailor its appeal so as to invoke the relief ordered in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the Bank of Commerce contends that the Comptroller so failed to explain his decision as to frustrate effective judicial review.

In Bank of Dearborn v. Saxon, 244 F.Supp. 394 (E.D. Mich. 1965), aff'd sub nom. Bank of Dearborn v. Manufacturers National Bank of Detroit, 377 F. 2d 496 (6th Cir. 1967), the Comptroller approved the defendant bank's new charter application, which when coupled with the relocation of another established bank, permitted the defendant by sleight of hand to circumvent a Michigan statute regulating branch banking. Finding a prima facie case of sham and subterfuge, the district court overturned the Comptroller's approval of the application as an abuse of discretion and forced disclosure of the administrative file, denying a claim of privilege advanced by the Secretary of the Treasury. In Camp v. Pitts, supra, the Comptroller denied plaintiff's bank charter application with only a very cursory explanation. The Supreme Court held that if "there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a trial de novo . . . but . . . to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." 411 U.S. at 142, 93 S.Ct. at 1244. The Bank of Commerce asks this court to reverse and remand with instructions that the district court elicit further commentary from the Comtproller explaining his decision and accord appellant access to the discovery process.

Appellant's reliance on these decisions, however, is misconceived. The preponderant weight of judicial precedent bars plaintiffs from deposing the Comptroller or requiring him to answer interrogatories. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004-1005, 85 L.Ed. 1429 (1941); Warren Bank v. Saxon, 263 F.Supp. 34 (E.D. Mich. 1966), aff'd sub nom. Warren Bank v. Camp, 396 F.2d 52, 56 (6th Cir. 1968); Klanke v. Camp, 320 F.Supp. 1185 (S.D. Tex. 1970). The Supreme Court recently affirmed this policy in Camp v. Pitts, supra, stating that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." 411 U.S. at 142, 93 S.Ct. at 1244. Here, the fact that it had the entire administrative file before it fully enabled the district court to conclude that the Comptroller's decision was neither arbitrary nor capricious.

When juxtaposed to such a complete administrative record and the applicable principles of law, appellant's conclusory objections to the hearing officer's refusal to grant a continuance, to the absence of a formal adversary hearing, and to ex parte meetings between the Comptroller's staff and City National's organizers, clearly fail to make out a prima facie case of misconduct. In reliance on the literal wording of the National Banking Act, see 12 U.S.C. §§ 26, 27 (1970), no court has held that the Comptroller must hold an adversary hearing in passing upon bank charter applications, nor has any tribunal restricted the use of ex parte methods to obtain information from the banks and parties involved, even if such methods are utilized after a hearing has taken place. First National Bank of Fairbanks v. Camp, 465 F.2d 486, 603-604 (D.C. Cir. 1972), cert. denied, 409 U.S. 1124, 93 S.Ct. 936, 35 L.Ed.2d 256 (1973); Sterling National Bank of Davie v. Camp, 431 F.2d 514, 516 (5th Cir. 1970), cert. denied, 401 U. S. 925, 91 S.Ct. 879, 27 L.Ed.2d 829 (1971); Ramapo Bank v. Camp, 425 F. 2d 333, 347-348 (3d Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 57, 27 L.Ed.2d 58 (1970); Citizens Bank of Hattiesburg v. Camp, 387 F.2d 375 (5th Cir. 1967), cert. denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 418 (1968). Here, the Bank of Commerce was afforded the opportunity of a public, albeit nonadversary, hearing in which to register its protest. The administrative file was left open for ex parte submissions by anyone so interested for five days thereafter. Furthermore, the refusal to grant a continuance was well within the ambit of the Comptroller's discretion. Viewed in their overall context, these assertions simply do not warrant the conclusion that the procedure before the Comptroller was a sham and subterfuge. Thus, we accept the observation of the district judge that "the real crux of the matter is simply that the Bank of Commerce disagrees with the Comptroller's finding; . . . appellant seeks to persuade this court that it, rather than the Comptroller, has the right answers."

Similarly, in Warren Bank v. Saxon, supra, the same district court strictly limited application of its prior decision in Bank of Dearborn v. Saxon, supra, which the Bank of Commerce cites as...