McEnteer v. Clarke
| Decision Date | 27 June 1986 |
| Docket Number | Civ. A. No. 86-3631. |
| Citation | 638 F. Supp. 911 |
| Parties | Ben McENTEER, Secretary of Banking, Commonwealth of Pennsylvania v. Robert L. CLARKE, Comptroller of the Currency of the United States of America; Bank of New Jersey, N.A., a national banking association; and Horizon Bancorp, a bank holding company. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Michael L. Harvey, Deputy Atty. Gen., Harrisburg, Pa., for plaintiff.
J. Dennis Faucher, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for Horizon Bank of Pennsylvania, Nat. Ass'n.
Elizabeth Pugh, U.S. Dept. of Justice, Civil Div., Washington, D.C., for Robert L. Clarke, Comptroller of the Currency of the U.S. of America.
1. This is the first case to determine whether to set aside a decision of the Comptroller of the Currency of the United States of America allowing the relocation across state lines of the main office of a national bank. 5 U.S.C.A. § 702 et seq. (West 1972).
2. On May 13, 1986, the Comptroller granted the request of the Bank of New Jersey, a national bank, which is a subsidiary of Horizon Bancorp, a New Jersey bank holding company, to relocate its main office from Moorestown, New Jersey to Philadelphia, Pennsylvania. The Bank moved for legitimate business reasons to be active in the Philadelphia market.
3. Plaintiff Ben McEnteer, Secretary of the Pennsylvania Department of Banking, has moved for a preliminary injunction in this matter.
4. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C.A. § 1331 (West Supp.1976), as this action arises under the National Bank Act, 12 U.S.C.A. § 21 et seq. (West 1980 & Supp.1986) and under the Bank Holding Company Act, 12 U.S.C.A. § 1841 et seq. (West 1980 & Supp.1986).
5. Venue in this district is proper under 28 U.S.C.A. § 1391(b) and (e) (West 1976 & Supp.1986).
6. Plaintiff is responsible for the administration of the Pennsylvania Banking Code. Pa.Stat.Ann. tit. 7, §§ 101-2204 (Purdon 1967 & Supp.1985). Plaintiff is specifically authorized to enforce Section 115 of the Pennsylvania Banking Code. See Id. at § 115(c). As the state official responsible for effectuating state banking policy, plaintiff has standing to enforce the applicable provisions of the National Bank Act and the Bank Holding Company Act.
7. Defendant Robert L. Clarke is named in his official capacity as the Comptroller of the Currency of the United States of America. The Comptroller is responsible for the supervision and regulation of national banks chartered under the National Bank Act.
8. The Bank of New Jersey, N.A., ("the New Jersey Bank") is a banking association duly incorporated under the laws of the United States and authorized to engage in the business of banking under the National Bank Act. The Bank of New Jersey changed its name to Horizon Bank of Pennsylvania, N.A., on May 30, 1986. The main and only office of the New Jersey bank is currently located at 226 Rittenhouse Square, Philadelphia, Pennsylvania.
9. Horizon Bancorp is a bank holding company incorporated under the laws of New Jersey. The operations of Horizon Bancorp's banking subsidiaries are principally conducted in New Jersey. The main office of Horizon Bancorp is located at 334 Madison Avenue, Morristown, New Jersey.
10. On May 6, 1985, the New Jersey bank, made application to the Comptroller to relocate its main and only office from 312 West Route 38, Moorestown, New Jersey, to 226 Rittenhouse Square, Philadelphia, Pennsylvania, a distance of approximately 11½ miles.
11. On June 5, 1985, the Pennsylvania Department of Banking filed a timely comment letter with the Comptroller of the Currency in opposition to Bank of New Jersey's relocation. The Department stated in its letter that: (a) Section 30 of the National Bank Act does not permit interstate relocation of a main office (12 U.S. C.A. § 30); (b) the Commissioner's approval of the relocation would violate section 1842(d) of the Bank Holding Company Act (12 U.S.C.A. § 1842(d) (the "Douglas Amendment"); and (c) approval would violate section 115 of the Pennsylvania Banking Code, Pa.Stat.Ann. tit. 7, § 115 (Purdon Supp.1985).
12. By decision dated May 13, 1986, signed by Judith A. Walter, Senior Deputy Comptroller for National Operations, the Comptroller granted the application of the New Jersey bank to relocate its sole banking office from Moorestown, New Jersey to Philadelphia, Pennsylvania.
13. The Comptroller ruled that section 30(b) of the National Bank Act (12 U.S.C.A. § 30(b)), rather than state law, controlled in this matter and that this statute allowed the interstate relocation of a main office, based on a reading of that statute as amended in 1959 and in 1982 and 1983. Decision of the Comptroller of the Currency on the Application of the Bank of New Jersey, National Association, Moorestown, New Jersey, to Relocate Its Main Office to Philadelphia, Pennsylvania, at 6-9.
14. The Comptroller ruled that section 1842(d) of the Bank Holding Company Act (12 U.S.C.A. § 1842(d)) was inapplicable to the facts of this case. Decision of the Comptroller, at 6-9.
15. In addition, the Comptroller ruled that even if state law, rather than federal law, applied to this case, the Pennsylvania statute at issue (Pa.Stat.Ann. tit. 7, § 115) probably violated the Commerce Clause and thus would not withstand constitutional scrutiny. Decision of the Comptroller, at 10-14.
16. The New Jersey bank, in light of the Comptroller's decision, opened its office in Philadelphia, Pennsylvania on May 23, 1986.
17. Plaintiff contends that the decision of the Comptroller is unlawful for the same reasons raised in its letter of opposition to the Comptroller.
18. Plaintiff, in this proceeding, has moved for a preliminary injunction (a) to enjoin the New Jersey bank from conducting business in Philadelphia, Pennsylvania; (b) to enjoin Horizon Bancorp from owning or controlling any bank in Pennsylvania; and (c) to enjoin the Comptroller from taking any action to implement or enforce the decision approving the relocation.
19. For the reasons set forth below, the motion for a preliminary injunction is DENIED.
20. Before a district court may issue a preliminary injunction it must consider whether the movant has shown that it is likely to prevail on the merits, whether the movant has shown irreparable harm in the absence of such relief, whether such relief will substantially harm other parties, and where the public interest lies. Premier Dental Products Co. v. Darby Dental Supply Co., 794 F.2d 850, 852 (3rd Cir. 1986). See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir.1980), Thermice Corp. v. Vistron Corp., 473 F.Supp. 1226, 1230 (E.D.Pa.1979).
21. Plaintiff has not met his burden in this matter. The likelihood of success on the merits is too slim to justify protecting Pennsylvania banks from competition at the expense of prohibiting the New Jersey bank from conducting its business in Philadelphia. In addition, granting injunctive relief would be against the public interest in competition and service.
22. Section 30(b) of the National Bank Act provides in part as follows:
Any national banking association, upon written notice to the Comptroller of the Currency may change the location of the main office ... with a vote of the shareholders owning two-thirds of the stock of such association ... and upon receipt of a certificate of approval from the Comptroller of the Currency, to any ... location within or outside the limits of the city, town, or village in which it is located, but not more than 30 miles beyond such limits.
12 U.S.C.A. § 30(b) (West Supp.1986).
23. Since the bank has obtained the required shareholder approval, this statute permits the Comptroller of the Currency to approve the New Jersey bank's relocation of its main office from Moorestown, New Jersey, to Philadelphia, Pennsylvania, a distance of about 11½ miles. Decision of the Comptroller, at 3.
24. Section 30(b) was amended in 1959 to delete the requirement that such a move be "within the same state." Act of September 8, 1959, Pub.L. No. 86-230, § 3, 73 Stat. 457. See Act of May 1, 1886, ch. 73, § 2, 24 Stat. 18.
25. The statute was also amended in 1982 and 1983, but the interstate restriction was not re-inserted. See Garn-St. German Depository Institution Act of 1982, Pub.L. No. 97-320, tit. IV, part A, § 405(a), 96 Stat. 1512 (October 15, 1982); Act of January 12, 1983, Pub.L. No. 97-457, § 19(a), 96 Stat. 2509.
26. The plain language of the statute allows national banks to relocate "to any other location" within 30 miles of the limits of the city, town, or village within which it is currently located. The proposed relocation complies with that requirement, and I will apply the plain language of the statute. There is no ambiguity in the statute. See Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194-95, 61 L.Ed. 442 (1917).
27. Plaintiff's second contention is that the Comptroller is not authorized to approve a relocation across state lines because such a relocation violates the Douglas Amendment to the Bank Holding Act. 12 U.S.C.A. § 1842(d).
28. The Douglas Amendment provides as follows:
Notwithstanding any other provision of this section, no application (except an application filed as a result of a transaction authorized under section 1823(f) of this title) shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company's banking subsidiaries were principally conducted on July 1, 1966, or the date on which such company became a bank holding company, whichever is later, unless the a...
To continue reading
Request your trial