IN RE UNITED INDEP. FEDERAL CREDIT UNION, No. CV 90-4234 (ADS).
Decision Date | 26 June 1991 |
Docket Number | No. CV 90-4234 (ADS). |
Parties | In re CONSERVATORSHIP OF UNITED INDEPENDENT FEDERAL CREDIT UNION, CHARTER NUMBER 01603. |
Court | U.S. District Court — Eastern District of New York |
Andrew J. Maloney, U.S. Atty., E.D.N.Y. by Joseph D. McCann, Brooklyn, N.Y., and Nat. Credit Union Admin. Bd., Office of General Counsel by John K. Ianno, Washington, D.C., for Nat. Credit Union Admin. Bd.
Buchwald & Kaufman by Alan R. Kaufman, New York City, for United Independent Federal Credit Union.
Jo Ann Harris, New York City, for Aaron Baer and Maurice Baer.
By Order dated November 29, 1990, the National Credit Union Administration Board (the "NCUAB") appointed itself conservator of the United Independent Federal Credit Union (the "Credit Union"), located in Valley Stream, New York, pursuant to 12 U.S.C. § 1786(h)(1) ().
The Order To Show Cause was unaccompanied by a Complaint.
There are presently three issues before the Court: (1) the NCUAB's motion to dismiss the Order To Show Cause for insufficiency of process; (2) Aaron Baer's and Maurice Baer's motion to intervene; and (3) the NCUAB's motion to dismiss the Order To Show Cause on the merits.
The NCUAB moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(4) for insufficiency of process.
The NCUAB contends that Federal Rule of Civil Procedure 3 requires the Credit Union to file a complaint with its Order To Show Cause, and that the Credit Union's failure to do so precludes the Court from hearing the Order To Show Cause.
Rule 3 provides:
"a civil action is commenced by filing a complaint with the court." (Fed.R.Civ.P. 3)
12 U.S.C. § 1786(h)(3) provides in relevant part as follows:
(12 U.S.C. § 1786(h)(3) emphasis supplied)
Section 1786(h)(3) does not explicitly require the Credit Union to file a complaint; it merely requires the Credit Union to "apply" to the Court for the requested relief. In fact, § 1786 itself contemplates judicial procedure in accord with the less formalistic Administrative Procedure Act, 5 U.S.C. § 500, et seq. ( ). Since § 1786(h)(3) does not limit the jurisdiction of the Court to hear solely a "civil action," but speaks in terms of "applications" by the allegedly aggrieved credit union, Rule 3 does not explicitly apply to § 1786(h)(3) applications.
The Court discerns no precedent or legislative history which equates § 1786(h)(3) applications with civil actions. The Court notes that there are other banking statutes which similarly permit a litigant to challenge administrative actions by "applying" for relief in the district court (see 12 U.S.C. § 1818a8D; 12 U.S.C. § 1786f2; and 12 U.S.C. § 1786g6).
In addition, the Court notes that the NCUAB has failed to articulate any prejudice it would suffer by responding to the Credit Union's Order To Show Cause without the benefit of a complaint. )
Finally, the Court believes it logical that Congress intended the NCUAB to set forth the basis for its actions, once a credit union, pursuant to § 1786(h)(3), made timely "application" in the district court challenging the NCUAB's action (see Federal Home Loan Bank Board v. Hauge, 664 F.Supp. 245 W.D.La.1987, affirmed, 840 F.2d 14 5th Cir.1988 Bank Board filed a "petition ... to enforce a Cease and Desist Order" in the district court pursuant to 12 U.S.C. § 1464d8A, which allows the Bank Board to "apply" to the district court for enforcement). It is reasonable to believe that if Congress intended to require the Credit Union to set forth the basis why the NCUAB's ex parte Order of Conservatorship was unjustified it would have expressly said so.
12 U.S.C. § 1786(h)(3) enables the Credit Union to "apply" to the Court for an order enjoining the NCUAB from continuing to possess and control the Credit Union. Since the statute does not concern "civil actions," Fed.R.Civ.P. 3 is inapplicable to applications brought pursuant to § 1786(h)(3). (See 4 Wright & Miller, supra, at § 1353 "a statutory commencement provision enacted after Rule 3 became effective takes precedence as against the rule") Accordingly, the NCUAB's motion to dismiss the Order To Show Cause because it fails to comply with Fed.R.Civ.P. 3 is denied.
By Order To Show Cause signed March 6, 1991, Aaron Baer and Maurice Baer (the "Baers") moved to intervene pursuant to Fed.R.Civ.P. 24(a)(2). In essence, the Baers — the majority shareholders of the Credit Union — contend that they should be allowed to intervene because they have an "interest relating to" the Credit Union and because they can only be of "assistance" to the NCUAB if they are given "access" to Credit Union documents seized by the NCUAB. They further argue that, by intervening, they can protect their "substantial investment" and guard against the "dissipation of assets by the federal government through the device of conservatorship."
The Baers' motion to intervene is precluded by the explicit language of the statute providing jurisdiction to the Court. It provides:
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