Citizens Marine National Bank v. United States Department of Commerce, Economic Development Administration

854 F.2d 223, 1988 WL 85360
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 8, 1988
DocketNos. 87-2705, 87-2789
StatusPublished
Cited by1 cases

This text of 854 F.2d 223 (Citizens Marine National Bank v. United States Department of Commerce, Economic Development Administration) 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
Citizens Marine National Bank v. United States Department of Commerce, Economic Development Administration, 854 F.2d 223, 1988 WL 85360 (7th Cir. 1988).

Opinion

POSNER, Circuit Judge.

Citizens Marine National Bank, a bank in Stevens Point, Wisconsin, was owed almost $1 million by a troubled local enterprise, the Weber Tackle Company, as a result of a series of loans that Citizens had made to Weber over the years. In 1979, Mr. and Mrs. Hutchinson bought a controlling interest in Weber, and also loaned the company in excess of $200,000, most of which has never been repaid. Weber’s perilous condition did not improve, and in 1981 Weber and the bank sought and obtained from the Economic Development Administration of the U.S. Department of Commerce a guaranty of 90 percent of a new $2.1 million loan by the bank to Weber. The Trade Act of 1974, 19 U.S.C. §§ 2341 et seq., authorized the Economic Development Administration (we use the past tense because this part of the Act is defunct, having been repealed for reasons well discussed in International Trade Administration Trade Adjustment Assistance: No Cure for Import-Injured Firms (U.S. Dept, of Commerce, Office of Inspector General, Rep. No. D-068-5-006, March 1985)) to provide financial assistance to American firms that had been badly hurt by imports, had “no reasonable access to financing through the private capital market,” yet provided “reasonable assurance of repayment of the loan.” 19 U.S.C. §§ 2342(b)(1)(A), 2345. Obviously, “reasonable” here is a term of art, since private financial institutions will happily lend money whenever there is a reasonable assurance of repayment. The Senate Report explains that “reasonable assurance of repayment” “should not be taken to mean reasonable assurance of repayment in the strict banking or commercial sense because adjustment assistance loans are admittedly high risk loans.” S.Rep. No. 1298, 93d Cong., 2d Sess. 149 [225]*225(1974), U.S.Code Cong. & Admin.News 1974, pp. 7186, 7289. Of course plenty of high-risk loans are made in the private sector, but a federal guaranty would reduce the interest rate that the borrower had to pay.

At all events, the guaranty agreement between the bank and the Economic Development Administration required the bank to “execute [doubtless a typo for ‘exercise’] such care and diligence in the disbursement, servicing, collection and liquidation of the Loan as would be exercised by a reasonable and prudent commercial bank in dealing with a loan of its funds without guaranty,” and provided that if the bank “failed to comply with all of the material provisions” of the agreement the government could terminate the guaranty. In connection with the guaranty the Hutchin-sons signed two agreements with the bank. In one they guaranteed the $2.1 million loan to Weber but the bank agreed not to enforce the guaranty against the Hutchin-sons’ home. In the other the bank agreed: (1) Upon payment in full by Weber of the loan guaranteed by the Economic Development Administration, the Hutchinsons — to whom Weber owed almost $200,000 — would be entitled to the repayment of their loan, above $50,000, “prior to payment of any other claims or indebtedness owing by [Weber] to the” bank. (2) If Weber was liquidated, the Hutchinsons would be entitled to the repayment of their loan (again, all but $50,000) from the distribution of such assets as the bank might “receive or be entitled to receive on any Junior Indebtedness in connection with any such ... liquidation.”

The loan was closed in December 1981. Ten months later Weber defaulted; it has since gone out of business. The bank sued Weber in state court, seeking to foreclose on Weber’s assets that had secured the loan. Weber responded with a third-party complaint against the government defendants. The basis of that complaint is obscure, but the idea may have been that Weber was a third-party beneficiary of the guaranty agreement and that if the government made good on its loan guaranty to the bank, the bank might ease up on its efforts to seize Weber’s assets. At all events, after removal of the case the district court allowed the parties to revamp the litigation: Weber dropped its third-party complaint (and effectively dropped out of the litigation), and the bank filed a complaint against the government — which had announced that it would indeed refuse to make good on its guaranty to the bank. The bank’s complaint based jurisdiction on 19 U.S.C. § 2350, which empowers the Secretary of Commerce to sue or be sued, for any amount of money, with respect to claims arising from the Trade Act of 1974, thus enabling this suit to be maintained notwithstanding the Tucker Act. The Tucker Act allows persons having non-tort claims against the United States or its agencies for $10,000 or more to litigate those claims in the Claims Court, so, in the absence of any other statute waiving the sovereign immunity of the United States, that is the only place they may be litigated — but section 2350 is such another statute. Cf. Van Drasek v. Lehman, 762 F.2d 1065, 1071 and n. 10 (D.C.Cir.1985); Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir.1981); Pacificorp. v. Federal Energy Regulatory Comm’n, 795 F.2d 816, 826 (9th Cir.1986) (concurring opinion).

The bank named as additional defendants the Hutchinsons, who had also guaranteed the loan, and who now counterclaimed against the bank for $150,000, the amount they claimed to be owed by virtue of their second agreement with the bank. This claim is based on state rather than federal law, but the bank contends that it is within the district court’s jurisdiction by virtue of the “pendent parties” concept.

The district judge granted summary judgment for the bank on its claim against the Hutchinsons, and they appeal. The bank’s claim against the government was the subject of a one-day bench trial, after which the judge held that although the bank had behaved imprudently in administering the loan, so had the government, and the bank had not committed a material breach of its obligations under the guaranty and therefore was entitled to judgment [226]*226(which with interest comes to $3.1 million). The government appeals.

There are first some jurisdictional issues to address:

1. The original case filed by the bank was not properly removed to the federal district court, for we have held that third-party defendants, including the United States and its agencies, cannot remove (with immaterial exceptions) suits in which the main claim is based on state law. Thomas v. Shelton, 740 F.2d 478 (7th Cir.1984). However, the issue of “removability” was made moot by the filing in the district court of a complaint (by the bank, against the government) that was within the court’s original jurisdiction. Graf v. Elgin, Joliet & Eastern Ry., 790 F.2d 1341, 1343 (7th Cir.1986); Bernstein v. Lind-Waldock & Co., 738 F.2d 179

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854 F.2d 223, 1988 WL 85360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-marine-national-bank-v-united-states-department-of-commerce-ca7-1988.