Builders Bank v. Federal Deposit Insurance Corp.

846 F.3d 272, 2017 WL 237585, 2017 U.S. App. LEXIS 996
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 19, 2017
DocketNo. 16-2852
StatusPublished
Cited by21 cases

This text of 846 F.3d 272 (Builders Bank v. Federal Deposit Insurance Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Builders Bank v. Federal Deposit Insurance Corp., 846 F.3d 272, 2017 WL 237585, 2017 U.S. App. LEXIS 996 (7th Cir. 2017).

Opinion

EASTERBROOK, Circuit Judge.

Builders Bank is insured and regulated by the Federal Deposit Insurance Corporation, which conducts a “full-scope, on-site examination” every 12 to 18 months, 12 U.S.C. § 1820(d). After an examination in June 2015 the FDIC assigned the Bank a rating of 4 under the Uniform Financial Institutions Rating System. The parties call this a CAMELS rating, after the System’s six components: capital, asset quality, management, earnings, liquidity, and sensitivity. The highest rating is 1, the lowest 5. The Bank contends in this suit under the Administrative Procedure Act that its rating should have been 3 and that the lower rating is ai-bitrary and capricious. But the district court dismissed the suit for want of jurisdiction, ruling that the assignment of ratings is committed to agency discretion by law. 5 U.S.C. § 701(a)(2).

Some circuits have called rulings under § 701(a)(2) jurisdictional, see, e.g., Flint v. United States, 906 F.2d 471, 476 (9th Cir. 1990); Lunney v. United States, 319 F.3d 550, 551 (2d Cir. 2003); Tsegay v. Ashcroft, 386 F.3d 1347, 1349 (10th Cir. 2004), but ours is not among them. When a private party seeks judicial review of administrative action, 5 U.S.C. § 702 and 28 U.S.C. § 1346(a)(2) supply subject-matter jurisdiction. If there are no standards for judicial review (the usual meaning of “committed to agency discretion by law,” see Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)), then the court dismisses the suit on the merits because the plaintiff can’t show that the agency’s action was unlawful. That’s the conclusion of Vahora v. Holder, 626 F.3d 907, 916-17 (7th Cir. 2010). Accord, Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009); Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010). Older decisions such as Flint precede, or do not discuss, the Supreme Court’s modern effort to distinguish truly jurisdictional rules from case-processing doctrines. See, e.g., United States v. Kwai Fun Wong, — U.S. -, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015); Sebelius v. Auburn Regional Medical Center, — U.S.-, 133 S.Ct 817, 184 L.Ed.2d 627 (2013).

Decades ago this court sometimes used the word “jurisdiction” to refer to all doctrines that foreclose judicial review. Arnow v. NRC, 868 F.2d 223 (7th Cir. 1989), is one illustration. But loose usage does not establish a holding, see Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 act 1237, 176 L.Ed.2d 18 (2010), or survive the Justices’ recent insistence that “jurisdiction” means a tribunal’s adjudicatory competence, not whether a litigant has an ironclad defense. Section 701(a)(2), which prevents review of mattei’S committed to agency discretion by law, [275]*275does not refer to or limit § 702, which creates subject-matter jurisdiction for claims under the APA. And when the Supreme Court has considered arguments under § 701(a)(2), it has done so on the merits; it has not ordered the cases remanded with instructions to dismiss for want of jurisdiction. See, e.g., Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993); Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Section 701(a)(2) is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.

Maintaining the distinction between jurisdictional and other rules is important, because courts must enforce the limits on subject-matter jurisdiction even when the litigants prefer a decision on the merits. If § 701(a)(2) curtails jurisdiction, then courts must decide in every case under the APA whether some statute or doctrine provides the agency with discretion. The court would have to raise the issue on its own, comb the statute books for grants of discretion, and so on, even if the agency never contended that its action came within § 701(a)(2). Congress could require this, but the language of § 701(a)(2) does not foreclose the possibility of waiver or forfeiture. We do not see a reason to depart from Vaharais conclusion that the extent of agency discretion concerns the merits, not jurisdiction—unless a particular statute designates the subject as jurisdictional.

The distinction between jurisdiction and the merits matters here not only because the district court (wrongly) concluded that it lacks jurisdiction but also because the FDIC has bypassed two other procedural reasons why it might prevail. First, APA review normally is limited to final agency actions. See, e.g., FTC v. Standard Oil Co. of California, 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Assignment of a CAMELS rating does not appear to be a final decision. It might be the basis of an administrative order directing a bank to change certain practices or desist from others, see 12 U.S.C. § 1818(b), (c), (d), but the FDIC has not issued such an order to the Bank. The CAMELS rating affects how much a bank must pay for deposit insurance, but the Bank has not asked the court to order the FDIC to lower its rates. Second, the Bank failed to take advantage of the opportunity to have the FDIC’s Supervision Appeals Review Committee review the rating. See 77 Fed. Reg. 17055-2 (Mar. 23,2012).

As we understand the law, however, the absence of a final decision would be just another reason to dismiss the suit—provided that there is a live controversy between the Bank and the FDIC. The effect of CAMELS ratings on insurance premiums creates a concrete stake that makes the current dispute justiciable. Cf. Sackett v. EPA, 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012) (dispute about classification of property as a wetland is justiciable even though additional steps may be required before a final remedy). The possibility of pre-enforcement review under decisions such as Sackett and Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), shows that a litigant-specific final decision is not a jurisdictional requirement.

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Bluebook (online)
846 F.3d 272, 2017 WL 237585, 2017 U.S. App. LEXIS 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/builders-bank-v-federal-deposit-insurance-corp-ca7-2017.