Pitts v. Camp, Civ. A. No. 69-979.
| Decision Date | 17 August 1971 |
| Docket Number | Civ. A. No. 69-979. |
| Citation | 329 F. Supp. 1302 |
| Court | U.S. District Court — District of South Carolina |
| Parties | F. W. PITTS et al., Plaintiffs, v. William B. CAMP, Comptroller of the Currency of the United States, Defendant. |
Benny R. Greer, of Greer & Chandler, Darlington, S. C., for plaintiffs.
Joseph O. Rogers, Jr., U. S. Atty. for the District of South Carolina, Columbia, S. C., William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C., Wistar D. Stuckey, Asst. U. S. Atty., Harland F. Leathers and A. James Barnes, Dept. of Justice, Washington, D. C., C. Westbrook Murphy, John E. Shockey and E. Jerry Higginson, Office of the Comptroller of the Currency, Washington, D. C., for defendant.
In August 1967, plaintiffs applied to the Comptroller of the Currency pursuant to 12 U.S.C. § 21 et seq. to organize a new bank in Hartsville, South Carolina. Plaintiffs, the organizers of the proposed new bank, filed information with the Comptroller and a field investigation was conducted by a national bank examiner. Based upon the file thus obtained, the Comptroller denied plaintiffs' application on April 15, 1968. Subsequent to the initial denial, plaintiffs submitted additional data and requested reconsideration by the Comptroller. The request for reconsideration was granted and a supplemental field examination was conducted. In July 1969 the Comptroller again denied plaintiffs' application. This action, whereby plaintiffs seek review of the decision of the Comptroller adverse to them, was commenced in November 1969.
Defendant moved to dismiss for want of jurisdiction of the subject matter, which motion was denied by the order of Judge Simons, October 19, 1970, D.C., 321 F.Supp. 407. At this point defendant has made the administrative file a part of the record in this case and moved for summary judgment thereon. Plaintiffs have undertaken certain discovery to which defendant objects on the ground that, as this determination must be made upon the record before the Comptroller, it cannot lead to admissible evidence. Plaintiffs have also moved for summary judgment upon the administrative record pursuant to a theory hereinafter discussed.
The court has twice heard the argument of counsel, has considered the briefs of the parties and the administrative record. It appears to the court that discussion of the two legal arguments propounded by plaintiffs is largely dispositive of the issues presented.
First, in opposition to defendant's motion for summary judgment and in support of interrogatories served upon the defendant, plaintiffs argue that because the defendant did not hold a hearing on this application such additional information as plaintiffs may present must be considered by this court, in addition to the administrative file now a part of the record. Plaintiffs contend that if an adversary hearing is not held, they must be afforded the opportunity to build, whether by discovery or the taking of testimony, a record here, which additional record must be considered together with the administrative record in order that the court can make a de novo determination of the disputed facts. In this argument plaintiffs place their principal reliance upon First National Bank of Smithfield, N. C. v. Saxon, 352 F.2d 267 (4th Cir. 1965). While that case involved a branch bank application rather than the present application for a new charter, it held that the court should provide a hearing and judge de novo the validity of the Comptroller's action, setting aside that determination if it constituted an abuse of the Comptroller's discretion.1 As this court understands that opinion and the subsequent order of a district judge for North Carolina in Bank of Haw River v. Saxon, 257 F.Supp. 74 (M. D.N.C.1966), the reason for the grant of a de novo hearing was the Comptroller's refusal to afford the aggrieved party a full and meaningful hearing. In this case no hearing was held, but plaintiffs did not demand or request such hearing. The regulations of the Comptroller provided in that regard:
The Comptroller need not have granted any hearing in the matter (see, Bank of Smithfield, supra), and it appears from the regulation that such hearing, if granted, could have fallen short of providing plaintiffs with reasonable opportunity to present their case (see Bank of Haw River, supra). In either of those events, the plaintiffs would be entitled to present evidence in this court. However, plaintiffs did not request a hearing. Neither the record nor the argument convince the court that plaintiffs regarded the procedure utilized by the defendant as unfair. It is the result of the procedure, the defendant's determination, by which they are aggrieved. At this stage the court cannot say that had plaintiff asked for a hearing that an adequate one would, or would not have been provided. Though plaintiffs did not have a right to a hearing before the Comptroller, they had a right and, if they sought to rely on the absence thereof, an obligation to request such hearing. In First-Citizens Bank and Trust Co. v. Camp, 409 F.2d 1086 (4th Cir. 1969), the court stated of the bank complaining of procedural error:
Its right to raise at the judicial level procedural objections not advanced before the administrative agency is suspect, because, ordinarily, a litigant is not entitled to remain mute and await the outcome of an agency's decision and, if it is unfavorable, attack it on the ground of asserted procedural defects not called to the agency's attention when, if in fact they were defects, they would have been correctible at the administrative level. at 1088, 1089
This court, therefore, concludes that its determination must be made from its consideration of the administrative record. The discovery sought by plaintiffs cannot aid in that consideration even if it were otherwise proper.2 Therefore, the record being complete, it appears that there is no reason to delay the grant of judgment in this case.
Plaintiffs' motion for summary judgment is upon the ground that the record shows that they met all the requirements of 12 U.S.C. §§ 21-27 and that as a result the statute required that the Comptroller issue the certificate. The Comptroller argues that the decision to issue the certificate is committed to his discretion and that the factors considered in making the decision are:
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Doraiswamy v. Secretary of Labor
...results of a supplemental field examination became available. Id. at 138-139, 93 S.Ct. at 1242, 36 L.Ed.2d at 109.59 Pitts v. Camp, 329 F.Supp. 1302, 1305 (D.S.C.1971). The appellants had undertaken discovery, id. at 1303, which the court ruled out. Id. at 1305.60 Id. at 1305-1308.61 Pitts ......
- Camp v. Pitts 8212 864
- Pitts v. Camp, 71-1965