Hancock Financial Corp. v. FEDERAL SAVINGS & L. INS. CORP.

• Decision Date: 26 February 1974
• Docket Number: 72-1327.,No. 74-1137,74-1137
• Parties: HANCOCK FINANCIAL CORPORATION, a Delaware corporation, Appellant, v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an instrumentality of the United States of America, as receiver for Gibraltar Savings and Loan Association, an Arizona corporation, Appellee. HANCOCK FINANCIAL CORPORATION, a Delaware corporation, Appellee, v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an instrumentality of the United States of America, as receiver for Gibraltar Savings and Loan Association, an Arizona corporation, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.2d 1325 (1974)

HANCOCK FINANCIAL CORPORATION, a Delaware corporation, Appellant, v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an instrumentality of the United States of America, as receiver for Gibraltar Savings and Loan Association, an Arizona corporation, Appellee.

HANCOCK FINANCIAL CORPORATION, a Delaware corporation, Appellee, v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an instrumentality of the United States of America, as receiver for Gibraltar Savings and Loan Association, an Arizona corporation, Appellant.

Nos. 74-1137, 72-1327.

United States Court of Appeals, Ninth Circuit.

February 26, 1974.

Robert R. Thornton, Hahn, Cazier, Thornton, Hoegh & Leff, Los Angeles, Cal., Edward V. Sexton, Phoenix, Ariz., for appellant (74-1137), for appellee (72-1327).

Daniel J. Goldberg, Associate Gen. Counsel, Fed. Sav. & Loan Ins. Corp., Washington, D. C., Bernald C. Porter, Tempe, Ariz., for appellee (74-1137), for appellant (72-1327).

Before CHAMBERS, CARTER, and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

Hancock, the principal stockholder in Gibraltar Savings and Loan Association, appeals the refusal by the district court to enjoin the sale of Gibraltar's assets by its receiver. The court dismissed the action on the ground that subject-matter jurisdiction was expressly barred by statute. We affirm.

Gibraltar, chartered by the State of Arizona, was insured by the Federal Savings and Loan Insurance Corporation (FSLIC). In 1966 the Superior Court for Maricopa County appointed the FSLIC as receiver for Gibraltar and directed it to liquidate Gibraltar's assets. By the end of 1971, virtually all the receivership assets had been sold except a portofolio of marketable mortgages, real-estate contracts, and a few parcels of real estate, with an aggregate book value of $16.5 million. On December 15, 1971, the Superior Court entered an order permitting the FSLIC to sell these remaining assets to a savings and loan association in Phoenix. Hancock filed a petition in the Arizona Court of Appeals to stay the order of the Superior Court, but that petition was denied. Thereafter, the minority stockholders of Gibraltar filed their notice of appeal from the order of the Superior Court.

Meanwhile, on December 21, 1971, before the sale of the remaining assets could be consummated, Hancock initiated this action to enjoin the FSLIC from any further sale of Gibraltar's assets. After the district court dismissed the complaint, it issued a temporary injunction to preserve the status quo pending appeal. (That injunction, which brought the liquidation of Gibraltar to a standstill, must be dissolved upon the receipt of the mandate herein.)

Hancock asserts: (1) original jurisdiction under the provisions of 12 U.S.C. § 1730(k)(1),¹ as an action in which the FSLIC is a party; (2) original jurisdiction under 28 U.S.C. § 1337, as an action arising out of an act of Congress regulating commerce; (3) original jurisdiction under the provisions of 28 U.S.C. § 1331(a), as an action arising under the laws of the United States in which the matter in controversy exceeds $10,000; and (4) original jurisdiction under the provisions of 28 U.S.C. § 1332, as an action between citizens of different states in which the matter in controversy exceeds $10,000.

Each of Hancock's asserted theories of federal jurisdiction has some general and superficial attraction, but all come to naught against the specific and controlling language of the proviso of 12 U.S.C. § 1730(k)(1), quoted in footnote 1. That clause states in pertinent part:

"* * * Provided, That any action * * * to which the Corporation is a party in its capacity as * * * receiver * * * of an insured State-chartered institution and which involves only the rights * * * of * * * stockholders * * * under State law shall not be deemed to arise under the laws of the United States * * *."

It is undisputed that the FSLIC is acting as the receiver of an insured state-chartered institution. Hancock, however, seeks to escape the consequences of this fact by arguing that its action involves more than the rights of stockholders under state law. Hancock claims to be also asserting rights under federal law. Hancock argues that the FSLIC was empowered to act as a receiver for Gibraltar under the provisions of 12 U.S.C. § 1729(c)(1). That same clause states that, if so appointed, the FSLIC shall have the same duties as are conferred upon it with respect to federal savings and loan associations. Among these duties is the duty "to proceed to liquidate its the association's assets in an orderly manner * * *." 12 U.S.C. § 1729(b)(5). The sale of the remaining real estate assets of Gibraltar did not constitute a liquidation in an orderly manner, Hancock asserts. Hence, Hancock concludes, a question is raised under a federal statute, thereby taking the case out of the exclusionary provision of § 1730(k)(1).

While the ingenuity of the argument is commendable, it proves too much. Every receiver is obligated to liquidate the receivership assets in an orderly manner; indeed, the order of the state court appointing the FSLIC as receiver required it so to act. There is no indication that § 1729(c)(1) and (b)(5) were intended to enlarge upon this already existing obligation inherent in any receivership.

Moreover, § 1729(d) provides:

"In connection with the liquidation of insured institutions in default, the Corporation shall * * * be subject only to the regulation of the court or other public authority having jurisdiction over the matter." (Emphasis added.)

The "court" or "authority" mentioned above refers to the "court of competent jurisdiction or other public authority" which rendered the "adjudication or other official determination" pursuant to which the FSLIC "is appointed as receiver for an insured institution for the purpose of liquidation." 12 U.S.C. § 1724(d). Since the Superior Court of Maricopa County appointed the FSLIC as receiver, the FSLIC is subject only to the regulation of that court, and the question of what constitutes an orderly liquidation must be litigated in that court in accordance with state law. Hancock, disappointed there, has tried a horizontal appeal to the district court.

If Hancock's logic were accepted, the proviso clause would be rendered a nullity. In every case where the FSLIC acts as a receiver, it would have the duty to liquidate assets in an orderly manner, thereby "raising a question of federal law" and taking the case out of the exclusionary provision. We are satisfied that Congress intended no such result. Thus, we conclude that Hancock's action against the FSLIC is barred by the first proviso clause of 12 U.S.C. § 1730(k)(1).²Cf. Federal Deposit Ins. Corp. v. National Surety Corp., 345 F.Supp. 885, 888 (S.D. Iowa 1972).

We note briefly other asserted grounds for jurisdiction. One is 28 U.S.C. § 1337. That section provides as follows:

"The district court shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraint and monopolies."

Hancock asserts that under 12 U.S.C. § 1729(c)(1) the FSLIC has a fiduciary duty to liquidate Gibraltar's assets in an orderly manner, thereby conferring original jurisdiction under 28 U.S.C. § 1337. However, we have just held that that clause does not raise a question of federal law sufficient to take this case out of the exclusionary provision of 12 U.S.C. § 1730(k)(1). Likewise, we now hold that § 1729(c)(1) is not an "Act of Congress regulating commerce" within the meaning of § 1337 and, hence, that jurisdiction is not conferred under that statute.

Another asserted ground for jurisdiction is 28 U.S.C. § 1331(a) (federal-question jurisdiction). Since the FSLIC was created as a federally chartered corporation under the provisions of 12 U.S.C. § 1725, Hancock asserts that under the rule announced in the Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885) a suit against the FSLIC involves a controversy arising under the laws of the United States.³ However, 28 U.S.C. § 1349 was enacted in 1925 to limit the holding of the Pacific Railroad Removal Cases to corporations in which the United States is the owner of more than one half of the capital stock. Although at one time the United States owned all of the stock of the FSLIC, that stock has been retired since 1958, and at the present time there is no outstanding stock to be owned. See Acron Investments, Inc. v. Federal Savings & Loan Ins. Corp., 363 F.2d 236, 239-240 (9th Cir.), cert. denied, 385 U.S. 970, 87 S.Ct. 506, 17 L.Ed.2d 434 (1966).

In 1966 Congress enacted a special jurisdictional statute for the FSLIC: 12 U.S.C. § 1730(k)(1). If federal courts already had jurisdiction over suits involving the FSLIC pursuant to the Pacific Railroad Removal Cases and 28 U.S.C. § 1349 there would have been little need to enact much of this statute. Moreover, since 12 U.S.C. § 1730(k)(1) begins, "Notwithstanding any other provision of law * * *," we feel compelled to look primarily to that section in determining jurisdiction over the FSLIC. For these reasons and...