First Bank & Trust Co. v. Smith, No. 74--1263

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN, Chief Judge, ALDRICH and CAMPBELL; LEVIN H. CAMPBELL
Citation509 F.2d 663
PartiesThe FIRST BANK AND TRUST COMPANY, Plaintiff-Appellant, v. James E. SMITH, Comptroller, etc., et al., Defendants-Appellees. . Heard
Docket NumberNo. 74--1263
Decision Date04 November 1974

Page 663

509 F.2d 663
The FIRST BANK AND TRUST COMPANY, Plaintiff-Appellant,
v.
James E. SMITH, Comptroller, etc., et al., Defendants-Appellees.
No. 74--1263.
United States Court of Appeals,
First Circuit.
Heard Nov. 4, 1974.
Decided Jan. 3, 1975.

Page 664

Michael T. Putziger, Boston, Mass., with whom Roche, Carens & DiGiacomo, Boston, Mass., was on brief for appellants.

William A. Waldron, Boston, Mass., with whom Alan L. Lefkowitz, Paul E. Clifford, and Gaston, Snow & Ely Bartlett, Boston, Mass., were on brief for Middlesex Bank, N.A., appellee.

Morton Hollander, Atty., Dept. of Justice, with whom Carl A. Hills, Asst. Atty. Gen., James N. Gabriel, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on brief for James E. Smith, Comptroller of the Currency of the United States, appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal requires us to review a decision by the Acting Comptroller of the Currency of the United States approving an application for permission to establish a branch bank in Chelmsford, Massachusetts. The district court, on the basis of the administrative record and an affidavit supplied by the applicant, granted summary judgment for the defendant. Comptroller. Fed.R.Civ.P. 56(b). We vacate and remand for further proceedings.

Defendant-Appellee, Middlesex Bank, N.A., is a national bank operating under the provisions of 12 U.S.C. § 12 et seq. It maintains 28 branch offices in Middlesex County. Plaintiff-Appellant, The First Bank and Trust Company (First Bank) is a Massachusetts Trust Company operating as a commercial bank under M.G.L. c. 172. It has its principal office in Chelmsford, Massachusetts, and four branch offices in surrounding towns.

On December 6, 1972, Middlesex Bank filed an application with the Regional Administrator of National Banks for the First Bank Region requesting permission from the Comptroller of the Currency to establish a branch office in the Purity Supreme Shopping Center in Chelmsford, Massachusetts. Pursuant to 12 C.F.R. § 5.2(b) Middlesex Bank published legal notice of its application, and First Bank requested that a hearing on the application be held in accordance with 12 C.F.R. §§ 5.4--5.10.

Page 665

Acting by designation of the Comptroller, the Regional Administrator held a public hearing, having first requested an investigation into the facts by a National Bank Examiner who rendered a written report. At the hearing Middlesex Bank presented evidence to support its application, First Bank presented opposing evidence, and several other local banks appeared in opposition. The Regional Administrator, without comment, then transmitted the file established pursuant to 12 C.F.R. § 5.3, including a transcript of the hearing, to the Comptroller who, after various levels of staff review, approved the application without stating his reasons. First Bank thereupon brought this action in the district court, 28 U.S.C. § 1331(a), challenging the Comptroller's action as violative of his statutory duty and authority and seeking declaratory and injunctive relief.

Appellant argues that the Comptroller failed to take into account a statutory requirement that he approve new branches for national banks only 'if such establishment and operation are at the time authorized to State banks by the statute law of the State in question' and 'subject to the restrictions as to location imposed by the law of the State on State banks.' 1 The statute has been held to incorporate by reference state laws governing the establishment of branch banks, First National Bank v. Walker Bank & Trust Co.,385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). Its purpose is to ensure 'competitive equality' so that national banks may not overwhelm and displace a state's own banks. By requiring national banks to adhere to the same restrictions on branching, Congress intended to prevent them from enjoying an unfair advantage over state banks. Walker Bank, supra; First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). In passing on each branch application, the Comptroller 'is to weigh (it) against the standard imposed by the statute law of the state, and to deny the application if that standard is not met.' First National Bank of Fairbanks v. Camp, 151 U.S.App.D.C. 1, 465 F.2d 586, 597...

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16 practice notes
  • Kollett v. Harris, Nos. 79-1453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 18, 1980
    ...statutory standard, compare P.A.K. Transport, Inc. v. United States, 613 F.2d 351 (1st Cir. 1980); First Bank & Trust Co. v. Smith, 509 F.2d 663 (1st Cir. 1975), or a comment which, if true, would seriously call into question the rationality of agency action, compare South Terminal Corp. v.......
  • State Bank of Fargo v. MERCHANTS NAT. BANK & TRUST, Civ. No. A3-76-9.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 31, 1978
    ...on applications for CBCT branch certificates. 12 U.S.C. § 36; 12 C.F.R. §§ 5.1, et seq. (Part 5). See First Bank and Trust Co. v. Smith, 509 F.2d 663, 665 (1st Cir. 1975); Merchants & Planters Bank of Newport, Ark. v. Smith, 380 F.Supp. 354, 361 (E.D.Ark.1974), aff'd, 516 F.2d 355 (8th Cir.......
  • Vial v. First Commerce Corp., Civ. A. No. 83-1908
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • May 19, 1983
    ...v. Camp, 465 F.2d 586, (D.C.Cir.1972), cert. denied, 409 U.S. 1124, 93 S.Ct. 936, 34 L.Ed.2d 256; First Bank & Trust Co. v. Smith, 509 F.2d 663 (1st Cir.1975); First Nat. Bank of Smithfield v. Saxon, 352 F.2d 267 (4th Cir.1965); Citizens Bank, American Bank & Trust Co. v. Saxon, 248 F.Supp.......
  • Montgomery Nat. Bank v. Clarke, Civ. No. 88-1022 (CSF).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 18, 1989
    ...Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 156-58, 90 S.Ct. 827, 831-32, 25 L.Ed.2d 184 (1970); First Bank and Trust Co. v. Smith, 509 F.2d 663, 665 (1st Cir.1975). In Camp v. Pitts, the Supreme Court clearly set forth the limited role of a reviewing court, under section 706(2)(A), ......
  • Request a trial to view additional results
16 cases
  • Kollett v. Harris, Nos. 79-1453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 18, 1980
    ...statutory standard, compare P.A.K. Transport, Inc. v. United States, 613 F.2d 351 (1st Cir. 1980); First Bank & Trust Co. v. Smith, 509 F.2d 663 (1st Cir. 1975), or a comment which, if true, would seriously call into question the rationality of agency action, compare South Terminal Corp. v.......
  • State Bank of Fargo v. MERCHANTS NAT. BANK & TRUST, Civ. No. A3-76-9.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 31, 1978
    ...on applications for CBCT branch certificates. 12 U.S.C. § 36; 12 C.F.R. §§ 5.1, et seq. (Part 5). See First Bank and Trust Co. v. Smith, 509 F.2d 663, 665 (1st Cir. 1975); Merchants & Planters Bank of Newport, Ark. v. Smith, 380 F.Supp. 354, 361 (E.D.Ark.1974), aff'd, 516 F.2d 355 (8th Cir.......
  • Vial v. First Commerce Corp., Civ. A. No. 83-1908
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • May 19, 1983
    ...v. Camp, 465 F.2d 586, (D.C.Cir.1972), cert. denied, 409 U.S. 1124, 93 S.Ct. 936, 34 L.Ed.2d 256; First Bank & Trust Co. v. Smith, 509 F.2d 663 (1st Cir.1975); First Nat. Bank of Smithfield v. Saxon, 352 F.2d 267 (4th Cir.1965); Citizens Bank, American Bank & Trust Co. v. Saxon, 248 F.Supp.......
  • Montgomery Nat. Bank v. Clarke, Civ. No. 88-1022 (CSF).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 18, 1989
    ...Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 156-58, 90 S.Ct. 827, 831-32, 25 L.Ed.2d 184 (1970); First Bank and Trust Co. v. Smith, 509 F.2d 663, 665 (1st Cir.1975). In Camp v. Pitts, the Supreme Court clearly set forth the limited role of a reviewing court, under section 706(2)(A), ......
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