Home Loan Bank Board v. Mallonee, No. 12511.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtSTEPHENS, HEALY and BONE, Circuit
Citation196 F.2d 336
PartiesHOME LOAN BANK BOARD et al. v. MALLONEE et al. FEDERAL HOME LOAN BANK OF SAN FRANCISCO et al. v. FEDERAL HOME LOAN BANK OF LOS ANGELES et al.
Decision Date02 April 1952
Docket NumberNo. 12511.

196 F.2d 336 (1952)

HOME LOAN BANK BOARD et al.
v.
MALLONEE et al.
FEDERAL HOME LOAN BANK OF SAN FRANCISCO et al.
v.
FEDERAL HOME LOAN BANK OF LOS ANGELES et al.

No. 12511.

United States Court of Appeals Ninth Circuit.

April 2, 1952.


196 F.2d 337
COPYRIGHT MATERIAL OMITTED
196 F.2d 338
COPYRIGHT MATERIAL OMITTED
196 F.2d 339
Newell A. Clapp, Acting Asst. Atty. Gen., Holmes Baldridge, Asst. Atty. Gen., Edward H. Hickey, Donald B. MacGuineas, Joseph Kovner, Attys., Department of Justice, Washington, D. C., Walter S. Binns, U. S. Atty., Paul Fitting, Asst. U. S. Atty., Los Angeles, Cal., Verne Dusenbery, Portland, Or., Philip H. Angell, Robert M. Adams, Jr., San Francisco, Cal., Bishop & Hoffman, Los Angeles, Cal., Melvin H. Siegel, Minneapolis, Minn., Sylvester Hoffmann, Los Angeles, Cal. (Kenneth G. Heisler, William F. McKenna, Mose Silverman, Home Loan Bank Board, Washington, D. C., of counsel), for appellant

Richard Fitzpatrick, Louis W. Myers, Paul Fussell, Pierce Works, Los Angeles, Cal. (O'Melveny & Myers, Bennett W. Priest and John Whyte, Los Angeles, Cal., of counsel), for appellee Federal Home Loan Bank of Los Angeles and certain of its member associations.

Westover & Smith, Los Angeles, Cal., for appellee Shareholders Protective Committee.

196 F.2d 340

W. I. Gilbert, Jr., Los Angeles, Cal., for appellee Federal Savings & Loan Ass'n of Wilmington.

Raymond Tremaine, Los Angeles, Cal., for appellee Robert H. Wallis.

F. Henry NeCasek, Long Beach, Cal., for appellee George Turner.

Lyman B. Sutter, Long Beach, Cal., for appellee Title Service Co.

F. Henry NeCasek, Long Beach, Cal., for appellee Home Investment Co. of Long Beach and others, intervenors.

Charles K. Chapman, Long Beach, Cal., for appellee Long Beach Federal Savings & Loan Ass'n.

Before STEPHENS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

I

Appellants above named appeal from a Preliminary Injunction issued by the lower court enjoining (1) the Home Loan Bank Board, its members, and other persons and defendants from holding or participating in an administrative hearing which was on September 9, 1949 ordered by Home Loan Bank Board (by Order No. 2015) to be held in Washington, D. C., on October 25, 1949, and (2) the initiation of or participation in any administrative or judicial proceedings by any person in conflict with the alleged jurisdiction of the court below. The injunction on appeal was issued on December 1, 1949, in a proceeding which had been pending in the lower court since May, 1946 and which involved a veritable army of litigants and innumerable issues. The controversy really revolves around contentions raised in two major actions, and these actions drew within their orbit the issues and litigants above mentioned.

During the course of the litigation, and for convenience, the lower court consolidated these two major controversies into one action.

The Major Parties

For a better understanding of the complex pattern of litigation revealed in the long record on this appeal it is necessary to clearly indicate and emphasize at the outset the original contentions of the two major plaintiffs below because these first contentions clearly reveal the fundamental issues which precipitated the litigation and prolonged it to the present moment.1 In referring hereafter to these two major contenders we use abbreviated terms to identify them and their actions. One of these actions is the so-called "Mallonee Case"; the other is the so-called "Los Angeles Action" and we will designate them as "Mallonee" and "Los Angeles," respectively.

By way of further identification the term "Mallonee" means the action initiated by a group of litigants who were (and are) shareholder-members of the "Long Beach Federal Savings and Loan Association" of Long Beach, California, a corporation organized and existing under and by virtue of the terms and provisions of the Home Owners' Loan Act of 1933, as amended, 12 U.S.C.A. § 1461 et seq., and which functions as a mutual thrift association in the City of Long Beach, California. In form, the Mallonee action was a "class-action" on behalf of the named plaintiffs who also claimed that in their suit they represented the interests of approximately 20,000 shareholder-members of the said Association who were similarly situated.

We hereafter refer to the Long Beach Federal Savings and Loan Association as "Association."

By reason of the virtual identity of interest existing between Mallonee and Association the contentions of the latter logically merged with those of Mallonee. So far as relief sought is concerned they may properly be viewed in this appeal proceeding as one party since they seek the same remedy. We now consider the contentions

196 F.2d 341
of these major parties in the original complaints and pleadings which launched this extended litigation

Prior to the issuance of the three Orders of the Federal Home Loan Bank Administration on March 29, 1946 (see text of Footnote 5, infra) the "Federal Home Loan Bank of Los Angeles" (herein called Los Angeles) was a body corporate, a Federal Home Loan Bank established by the Federal Home Loan Bank Board under authority and within the meaning of Chap. 11 of Title 12 of the U.S.C.A.

The first complaint of Mallonee was filed in the lower court on May 27, 1946 by Paul Mallonee and certain other shareholder-members of Association, and it named as defendants John H. Fahey, individually and as Chairman of the Federal Home Loan Bank Board; Ammann, individually and as purported Conservator for Association; Association, and several Does and Roes. In this action Mallonee demanded that Ammann (who had been appointed Conservator of Association on May 20, 1946 by the "Federal Home Loan Bank Administration"2) be removed by order of the court. Among other matters the complaint charged in general terms that because Association had objected to a previous seizure of Los Angeles by the administrative officials of the Federal Home Loan Bank Board (thereby becoming unlawfully possessed of and interfering with property belonging to Association) the said administrative officials had unlawfully seized Association and named Ammann as Conservator thereof; that in this action the administrative officials were willful, wanton, malicious and vindictive, and acted illegally and without warrant of law; that the Conservatorship had caused large withdrawals of funds from Association; that the administrative officials had previously unlawfully seized possession of Los Angeles, to the injury of Association (a stockholder in Los Angeles) and its members. The relief sought was an adjudication of the "rights" of all parties to the Conservatorship transaction; an injunction which would, among other matters, forbid a merger of Association with any other organization and preserve (with immaterial exceptions) the status quo ante of Association,

196 F.2d 342
and in addition, require Ammann to account to Association for all property received by him and Administration.3 This pleading made no reference to an administrative hearing on the Ammann appointment

As indicated above, Mallonee named Association as a defendant, obviously upon the theory that since Association was then under a Conservatorship and in possession and under control of the Conservator (Ammann),

196 F.2d 343
it was thereby rendered legally impotent to defend itself against the actions of the administrative officials of Administration who were named as defendants because of their appointment of a Conservator

By its first pleading Association "injected" itself into the Mallonee suit, this by way of an answer in the Mallonee action. In this pleading Association styled itself "defendant and third party plaintiff" and its pleading a "cross-complaint." This pleading was filed July 1, 1946, and it named and brought into the Mallonee action (as third party defendants) the three Federal Home Loan Banks of Portland, San Francisco and Los Angeles, the last named being the party we designate herein as "Los Angeles." As respects the said Home Loan Banks, Association demanded that there be an accounting of and return to Association of all its property of every kind then held by said banks. Among other matters Association demanded that the court determine and adjudge in which Bank Association was a stockholder, and also that all of the acts of Ammann, as Conservator, be invalidated as unauthorized, illegal and void.

The lower court made a formal order on July 1, 1946 in which it directed that the aforesaid three Home Loan Banks be made parties in the Mallonee action, reciting in this order that the three Banks were "necessary and proper parties to the complete and final determination of the above Mallonee action."

The pleadings of Mallonee and Association both had as their basic premise and contention the charge that the appointment of a Conservator for Association was an illegal act wholly without authority of law, as a consequence of which these parties had been deprived of their property without due process of law, or any process of law.

We shall later comment at length on the contentions of Mallonee and Association but, as we have noted above, their position on basic issues reflects a true identity of interest on all material matters. They have maintained a formal separation of their pleadings in various proceedings below and have filed separate briefs on this appeal, but any relief here granted will inure to the benefit of both.

An independent plenary action which we style "Los Angeles," was instituted on August 22, 1946.4 It grew out of three Orders issued by the Federal Home Loan Bank Administration (hereafter called "Administration") on March 29, 1946. These Orders5 liquidated and reorganized Los Angeles and "adjusted" and reorganized that

196 F.2d 344
branch of the Federal Home Loan Bank System operating in the Pacific Coast area of the United States which embraced the Home Loan Banks of, and located in, Portland,...

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32 practice notes
  • Elliott v. Federal Home Loan Bank Board, No. 63-1072
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 22 Septiembre 1964
    ...actions are judicially reviewable, and it does not have "uncontrolled discretion." Home Loan Bank Board et al. v. Mallonee (9 Cir. 1952) 196 F.2d 336, Cert. den. Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Federal Home Loan Bank Board v. Long Beach Federal Savings & Loan A......
  • Fahey v. O'Melveny & Myers, No. 12591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Diciembre 1952
    ...in the so-called "consolidated cases" ("Mallonee Case" and the "Los Angeles Action") described in our opinion in Case No. 12,511, 196 F.2d 336, entitled "Home Loan Bank Board et al. v. Mallonee et al., and consolidated case Federal Home Loan Bank of San Francisco, et al. v. Federal Home Loa......
  • Legacy v. Sherman, Nos. 09–17796
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 26 Mayo 2011
    ...Int'l, Inc., 367 F.3d 1087, 1088 (9th Cir.2004) (“operates in an unconstitutionally retroactive manner”); Home Loan Bank Bd. v. Mallonee, 196 F.2d 336, 370 (9th Cir.1952) (“amendments operated in this retroactive manner”); see also Garcia–Ramirez v. Gonzales, 423 F.3d 935, 952 n. 5 (9th Cir......
  • American Dairy of Evansville, Inc. v. Bergland, No. 77-1926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Julio 1980
    ...969, 77 S.Ct. 360, 1 L.Ed.2d 323 (1957); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir. 1975); Home Loan Bank Bd. v. Mallonee, 196 F.2d 336, 381 (9th Cir. 1952), cert. denied, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374 (1953). 55 Brief for Appellants at 38-39. 56 See 7 U.S.C. § 608c(......
  • Request a trial to view additional results
32 cases
  • Elliott v. Federal Home Loan Bank Board, No. 63-1072
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 22 Septiembre 1964
    ...actions are judicially reviewable, and it does not have "uncontrolled discretion." Home Loan Bank Board et al. v. Mallonee (9 Cir. 1952) 196 F.2d 336, Cert. den. Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Federal Home Loan Bank Board v. Long Beach Federal Savings & Loan A......
  • American Dairy of Evansville, Inc. v. Bergland, No. 77-1926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Julio 1980
    ...969, 77 S.Ct. 360, 1 L.Ed.2d 323 (1957); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir. 1975); Home Loan Bank Bd. v. Mallonee, 196 F.2d 336, 381 (9th Cir. 1952), cert. denied, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374 (1953). 55 Brief for Appellants at 38-39. 56 See 7 U.S.C. § 608c(......
  • Long Beach Fed. S. & L. Ass'n v. Federal Home Loan Bk. Bd., No. 1039-60-PH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 18 Noviembre 1960
    ...332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Mallonee v. Fahey, D.C.1949, 14 F.R.D. 273; Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336, certiorari denied Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Mallonee v. Fahey, 9 Cir., 1952, 200 F.2d 918; Fahey v. O'Mel......
  • Rank v. (Krug) United States, No. 685-ND.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 11 Julio 1956
    ...only, does not apply, and the statute can properly be held applicable to pending suits. Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336, at page 382, certiorari denied Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Petition of Callanan, D.C.E.D.Mich.1931, 51 F.2d......
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