CityFed Financial Corp. v. Office of Thrift Supervision

58 F.3d 738, 313 U.S. App. D.C. 178, 1995 WL 405264
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 11, 1995
DocketNos. 94-5254, 94-5255
StatusPublished
Cited by21 cases

This text of 58 F.3d 738 (CityFed Financial Corp. v. Office of Thrift Supervision) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 313 U.S. App. D.C. 178, 1995 WL 405264 (D.C. Cir. 1995).

Opinion

Opinion of the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In June of 1994, the Office of Thrift Supervision issued a temporary cease and desist order against CityFed Financial Corporation that froze virtually all of CityFed’s assets. According to OTS, the Corporation failed to use those assets to comply with the net worth requirements for its subsidiary bank, City Federal Savings and Loan, which OTS had placed into receivership several years earlier. Arguing that the receivership ended its control over its subsidiary and therefore OTS’s jurisdiction over it as a “holding company,” CityFed sought a preliminary injunction barring OTS from enforcing the temporary order. We agree with the district court that because the alleged violations occurred before the receivership, OTS had jurisdiction to issue the cease and desist order. Because CityFed failed to demonstrate that the temporary cease and desist order would cause it irreparable harm, we also affirm the district court’s denial of the preliminary injunction.

I.

The savings and loan industry developed primarily as a means of “finane[ing] the purchase and construction of housing.” Transohio Sav. Bank v. Director, OTS, 967 F.2d 598, 601 (D.C.Cir.1992); see also H.R.Rep. No. 54, pt. 1, 101st Cong., 1st Sess. 291 (1989) [hereinafter House Report], reprinted in 1989 U.S.C.C.A.N. 86, 87. With the high interest rates of the late 1970s and early 1980s, savings and loans found themselves “locked into long-term, low-yielding, fixed-rate mortgages,” while depositors transferred their assets from savings and loans into higher-yield investments. House Report at 295, U.S.C.C.A.N.1989, p. 91; see Transohio, 967 F.2d at 602. In an effort to address the resulting financial instability, the federal government significantly deregulated the savings and loan industry, allowing institutions to participate in much riskier investments. See House Report at 294-98. In combination with economic recession, poor management, and some fraud, failed high-risk investments “left the industry struggling for survival, and ... virtually wiped-out its deposit insurance fund.” Id. at 292; see also S.Rep. No. 19, 101st Cong., 1st Sess. 7-10 (1989) [hereinafter Senate Report], U.S.C.C.A.N.1989, p. 88; Transohio, 967 F.2d at 601-04; see generally Graduate Colloquium 1990-91, The S & L Crisis: Death and Transfiguration, 59 Fordham L.Rev. S1, S1-S109 (1991).

In response to the lax regulation and loose capital requirements that it perceived at the root of the savings and loan crisis, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (codified at 12 U.S.C. § 1811 and in scattered sections of U.S.C.). In part, FIRREA was enacted to “establish stronger capital standards for thrifts,” thereby providing “a cushion against losses incurred in times of poor financial [741]*741performance.” House Report at 307, 310, U.S.C.C.A.N.1989, pp. 103, 106. According to Congress, “if a crisis of this nature is to be prevented from happening again, thrifts must be adequately capitalized against losses.” Id. at 310, U.S.C.C.A.N.1989, p. 106; see also Transohio, 967 F.2d at 603-04. In addition to establishing these higher capital requirements, FIRREA was enacted to “enhance the regulatory enforcement powers of the depository institution regulatory agencies to protect against fraud, waste, and insider abuse.” House Report at 307-08, U.S.C.C.A.N.1989, pp. 103-104. To increase the effectiveness of the regulatory scheme, Congress consolidated many of the powers and duties of the pre-FIRREA regulatory agencies, the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation, into the newly-created Office of Thrift Supervision. See American Fed’n of Gov’t Employees v. FLRA, 46 F.3d 73, 74 (D.C.Cir.1995); Transohio, 967 F.2d at 603; see also FIRREA, § 101(9), (10) (enacting FIRREA to “strengthen the enforcement powers of Federal regulators ... [and] the civil sanctions ... for defrauding or otherwise damaging depository institutions and their depositors”).

Among OTS’s powers is its ability to initiate administrative proceedings designed to protect savings and loans. See 12 U.S.C. § 1464(d)(1)(A) (Supp. V 1993) (giving OTS Director authority to enforce 12 U.S.C. § 1818). As authorized by 12 U.S.C. § 1818(b)(1) (Supp. V 1993), these proceedings may begin once OTS determines that “any insured depository institution ... or any institution-affiliated party is engaging or has engaged ... in an unsafe or unsound practice ... or is violating or has violated ... a law, rule, or regulation, or any condition imposed in writing by the agency.” If one of these conditions exists “in the opinion of’ OTS, it “may issue and serve upon ... such party a notice of charges.” 12 U.S.C. § 1818(b)(1). After this notice and a hearing, the agency may issue a “permanent” cease and desist order that may require the party “to take affirmative action to correct the conditions resulting from any such violation,” id., including restitution in cases of “unjust enrichment” or “reckless disregard for the law,” 12 U.S.C. § 1818(b)(6) (Supp. V 1993).

In addition to its permanent cease and desist authority, OTS “may issue a temporary order requiring the depository institution or such party to cease and desist from any ... violation or practice [charged in a section 1818(b)(1) proceeding] and to take affirmative action ... pending the completion of such proceedings.” 12 U.S.C. § 1818(c)(1) (Supp. V 1993). OTS can issue such orders, however, only if it

determined that the violation ... or the unsafe or unsound practice or practices, specified in the notice of charges served upon the depository institution or any institution-affiliated party pursuant to paragraph (1) of subsection (b) of this section, or the continuation thereof, is likely to cause insolvency or significant dissipation of assets or earnings of the depository institution, or is likely to weaken the condition of the depository institution or otherwise prejudice the interests of its depositors prior to the completion of the [administrative] proceedings.

12 U.S.C. § 1818(c)(1).

To ensure that holding companies like Ci-tyFed do not escape OTS’s regulatory authority, FIRREA made most of section 1818, including the permanent and the temporary cease and desist powers, applicable “to any savings and loan holding company ...

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Bluebook (online)
58 F.3d 738, 313 U.S. App. D.C. 178, 1995 WL 405264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cityfed-financial-corp-v-office-of-thrift-supervision-cadc-1995.