Wuliger v. Office of Comptroller of Currency
| Decision Date | 14 October 2005 |
| Docket Number | No. 3:05 CV 108.,3:05 CV 108. |
| Citation | 394 F.Supp.2d 1009 |
| Parties | William T. WULIGER, Plaintiff, v. OFFICE OF THE COMPTROLLER OF CURRENCY, et al., Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Richard S. Wayne, Thomas P. Glass, Nicole M. Lundrigan, Strauss & Troy, Cincinnati, OH, Wallace A. Showman, New York City, for Plaintiff.
Ernest C. Barrett, III, Larry J. Stein, U.S. Department of the Treasury, Herbert E. Forrest, U.S. Department of Justice, Washington, DC, Richik Sarkar, Ulmer & Berne, Steven A. Friedman, Rebecca W. Haverstick, Squire, Sanders & Dempsey, Cleveland, OH, for Defendant.
SECOND AMENDED MEMORANDUM OPINION*
This case is one of many cases in the satellite litigation generated from the Liberte Capital v. Capwill, 5:99 CV 0818 (N.D.Ohio) debacle. Without belaboring the already familiar history of this litigation1 a brief overview of the facts underlying this case is sufficient for purposes of this discussion. James A. Capwill ("Capwill") was the escrow agent who, along with his company Viatical Escrow Services ("VES"), handled the investment funds for several investor groups. These investment funds were used to fund various bank and brokerage accounts, ultimately to the detriment of the investors. Following his appointment as Receiver, the Plaintiff has initiated suits against various brokerage firms and financial institutions. In actions against the financial institutions, the Receiver sought discovery of Suspicious Activity Reports ("SARs") and the banks therein raised strenuous objections thereto.
In January 2005, William T. Wuliger ("Wuliger") as acting General Receiver, brought this action against the Office of the Comptroller of Currency, Julie L. Williams, Acting Comptroller, Douglas W. Roeder, Senior Deputy Comptroller (hereinafter collectively referred to as the "OCC"), KeyBank National Association, Liberty Bank, N.A., and Star Bank, N.A. ("the Banks"). In his complaint, the Receiver seeks declaratory and injunctive relief concerning the OCC's authority regarding the Receiver's access to non-public OCC information following the Plaintiff's unsuccessful administrative request. A determination on the Receiver's ability to access this information via the OCC is critical to the bank litigation previously referenced.
Pending before the Court are the: (1) OCC's motion to dismiss or, in the alternative, motion for summary judgment; (2) Plaintiff's cross-motion for summary judgment; (3) the Defendant Banks' cross-motion for summary judgment; and (4) a further statement of interest of the United States, presented by the Department of Justice. Also before the Court are the parties' responses to the various motions/statements. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. With the matters having been fully briefed, the Court now turns to the issues presented.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir.2000). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
"In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party." Williams v. Belknap, 154 F.Supp.2d 1069, 1071 (E.D.Mich.2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987)). However, "`at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir.1994) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505); therefore, "[t]he Court is not required or permitted ... to judge the evidence or make findings of fact." Williams, 154 F.Supp.2d at 1071. The purpose of summary judgment "is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried." Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.Supp.2d 928, 930 (S.D.Ohio 1999). Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir.2000).
Judicial review of an agency decision is authorized under the Federal Administrative Procedure Act ("APA"). 5 U.S.C. § 706. Under this statute the court, after review of the relevant legal questions and, where necessary, shall —
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be —
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
As the noted recently by the Sixth Circuit, the standard of review is narrow and deferential as "the court is not empowered to substitute its judgment for that of the agency." Northeast Ohio Regional Sewer District v. United States EPA, 411 F.3d 726, 733-732 (6th Cir.2005), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Moreover, the burden of proof is on the aggrieved party seeking to establish the invalidity of the administrative action. Warren v. U.S., 932 F.2d 582, 586 (6 th Cir.1991); Cape Hatteras Access Preservation Alliance v. U.S. Dept. Of Interior, 344 F.Supp.2d 108, 119 (D.D.C.2004); Carabell v. United States Army Corps of Engineers, 257 F.Supp.2d 917, 926 (E.D.Mich.2003), aff'd 391 F.3d 704 (6th Cir.2004); Burkholder v. Wykle, 268 F.Supp.2d 835, 841 (N.D.Ohio 2002), aff'd 58 Fed.Appx. 94 (6th Cir.2003). Where the agency determination cannot be sustained, the court must remand for further consideration of the request. See Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973).
A review under the APA contemplates consideration of the administrative record in existence as opposed to a new record being made before the reviewing court. Buckeye Forest Council v. U.S. Forest Service, 378 F.Supp.2d 835, 842 (S.D.Ohio 2005), citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).
In this case, the OCC has moved for disposition under Fed.R.Civ.P. 12(b)(6) and 56. The Receiver has filed a cross-motion for summary judgment as have the Defendant Banks. However, given the nature of this administrative review and the fact that the Receiver has not sought discovery necessary to respond to the Defendants' motions, the appropriate vehicle for disposition is under Rule 56.
The Bank Secrecy Act of 1970 ("BSA") requires financial institutions to maintain records and provide reports to regulators which, in turn, assist in the investigation of criminal, tax or regulatory proceedings. An underlying purpose of the BSA was to counter money-laundering activities. To that end, the Secretary of the Treasury is authorized to issue regulations in promoting this record-keeping mandate as well as assisting in law enforcement or regulatory investigations. 12 U.S.C. § 153. Under the 1992 Annunzio-Wylie Anti-Money Laundering Act, "[t]he Secretary may require any financial institution ... to...
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